Ridge & Hurley
[2024] FedCFamC2F 1174
•30 August 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Ridge & Hurley [2024] FedCFamC2F 1174
File number: ADC 2379 of 2023 Judgment of: JUDGE BROWN Date of judgment: 30 August 2024 Catchwords: FAMILY LAW – Parenting – Child aged 9 – Where the child has not interacted with the father for four years – Where the father seeks parenting orders to resume a relationship with the child – Where the relationship was severed as he was sentenced to a term of imprisonment – Where the mother seeks a decree pursuant to s 102QAB of the Family Law Act 1975 (Cth) – Consideration of the welfare of the child’s primary carer – Whether the continued proceedings amount to harm – Family violence – Assessment of harm – Harmful proceedings order made – Application dismissed Legislation: Family Law Act 1975 (Cth) Pts VII, XI, XIB, Div 3, 12A, ss 4AB, 60CA, 60CC, 60CD, 65AA, 69ZN, 69ZQ, 102NA, 102QAB, 102QAC, 102QAE
Federal Circuit and Family Court of Australia Act 2021 (Cth) s 190
Federal Court Act 1976 (Cth) s 31A
Cases cited: Australian Securities and Investment Commission v Cassimatis (2013) 220 FCR 256
Dey v Victorian Railway Commissioners (1949) 78 CLR 62
Lindon v Commonwealth of Australia (No 2) (1996) 136 ALR 251
McKellar v Container Terminal Manager Services Limited (1999) 165 ALR 409
Przybylowski v Australian Human Rights Commission (No 2) [2018] FCA 473
Riva NSW Ltd v Official Trustee in Bankruptcy [2017] FCA 188
Ridge & Hurley [2020] FCCA 1097
Spencer v Commonwealth of Australia (2010) 241 CLR 118
Stativa & Stativa [2015] FamCAFC 170
Division: Division 2 Family Law Number of paragraphs: 188 Date of hearing: 13 June 2024 Place: Adelaide The Applicant: Appeared in person Counsel for the Respondent: Ms Harris Solicitor for the Respondent: CG Family Law ORDERS
ADC 2379 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR RIDGE
Applicant
AND: MS HURLEY
Respondent
ORDER MADE BY:
JUDGE BROWN
DATE OF ORDER:
30 AUGUST 2024
THE COURT ORDERS THAT:
1.Pursuant to section 102QAB of the Family Law Act 1975 (Cth) (hereinafter referred to as “the Act”) and rule 10.09 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 the application filed 19 May 2023 is dismissed.
2.Pursuant to section 102QAC(1) of the Act, the father, is prohibited without leave from the Court, from instituting proceedings under the Act in a court having jurisdiction under the Act, against or in relation to the mother.
3.The final orders made on 7 May 2020 are hereby discharged.
THE COURT FURTHER ORDERS ON A FINAL BASIS THAT:
4.The mother have sole decision making in relation to all major long term decisions in relation to the child X born in 2015 (hereinafter referred to as “the child”).
5.The child live with the mother.
6.The child spend no time with the father NOTING THAT upon the child attaining 14 years of age the child spend time with and communicate with the father pursuant to the child’s express wishes.
7.The parties forthwith download and communicate through the AppClose Parenting Application with such communication to be limited to occur once per fortnight.
8.The father be at liberty to obtain a copy of the child’s school reports and school photographs from the child’s school at his own expense.
9.Without admission of the need for same, the father be restrained and an injunction be granted restraining him from:
(a)Communicating with the maternal grandparents either by way of text message or email communication;
(b)Sending any communications that are harassing, intimidating, threatening or abusive in nature to the mother and/or any of her family members or partners;
(c)From contacting the child’s school (save with respect to order 8 herein) or any extracurricular activities or the like that the child participates in without the express written consent of the mother;
(d)Attending at the child’s school or any extracurricular activities or the like that the child participates in without the express written consent of the mother NOTING THAT same can occur pursuant to the child’s express wishes in accordance with order 6 herein SUBJECT TO the father not approaching within 10 meters of the mother unless expressly initiated by the mother and not approaching within 10 meters of the child unless expressly initiated by the child; and
(e)From contacting, communicating, or approaching the mother or the child unless as prescribed by these Orders.
10.The parties be restrained and an injunction be granted restraining each of them from:
(a)Denigrating, abusing or criticising the other parent or members of the other parent’s extended family to or in the presence or hearing of the child and/or allowing, permitting or encouraging any other person to do so; and
(b)Discussing these proceedings or any of the issues arising out of these proceedings with or in the presence or hearing of the child or showing the child any documents filed with or produced for the purpose of these proceedings or allowing, permitting or encouraging any other person to do so.
11.All extant applications be dismissed as finalised.
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
JUDGE BROWN:
INTRODUCTION
Mr Ridge (“the father”) and Ms Hurley (“the mother”) are the parents of X born in 2015. They have been in conflict with one another, in respect of arrangements for X’s care, since shortly after she was born. Mr Ridge was born in 1975; Ms Hurley was born in 1984.
These reasons for judgment relate to an application brought by the mother to summarily dismiss the father’s application to resume spending time with X, following the interruption of the relationship between the two as a consequence of Mr Ridge being sentenced to a term of imprisonment and thereafter restrain him from being able to commence further proceedings against her relating to parenting arrangements for X.
The application is brought pursuant to the provisions of Part XIB of the Family Law Act 1975 (Cth)[1] which is headed Decrees and orders relating to unmeritorious, harmful and vexatious proceedings.
[1] Hereinafter referred to as “the Act”.
In general terms, Ms Hurley submits that Mr Ridge has no reasonable prospects of successfully prosecuting his current application and in addition any further proceedings against her brought pursuant to the provisions of the Act would occasion harm to both her and X and should therefore be prohibited by the court.
The evidentiary basis of Ms Hurley’s application is that she has been the subject of significant coercive and controlling behaviour from Mr Ridge, which, in part, is manifested by Mr Ridge bringing continual legal proceedings against her and members of her family and indeed even against third parties who have had any engagement with the parties.
Mr Ridge resists this application and characterises himself as a concerned and loving parent of X, with whom he concedes he has not interacted directly since July 2020. He alleges that Ms Hurley has alienated the child from his affections and the court needs to take proactive but gradual steps to reinstate some form of paternal relationship between him and X.
In the context of this polarised dispute, a Family Report was compiled by Ms B, a social worker and family consultant, in April 2024. As part of her report compilation process, Ms B interviewed X. She told Ms B that she did not want to see Mr Ridge and his attempts to engage with her, by purchasing her lunch, from her school tuckshop, made her feel uncomfortable.[2]
[2] See Family Report dated 8 April 2024 at [65].
BACKGROUND
The parties met in late 2011 and subsequently married in 2013. Although there is some controversy about the exact date, it would appear to be the case that the parties separated in November 2015, when X was an infant.
The initial proceedings in respect of the parenting arrangements for X were commenced by the father on 28 January 2016, subsequently amended to include property proceedings on 12 May 2016.
The resulting litigation between the parties took over four years to be concluded, with Judge Heffernan, formerly of this court, delivering judgment on 7 May 2020, following a trial that occupied approximately ten days.[3] This litigation was highly contested and during it three family assessment reports were prepared and X herself was represented independently of the parties.
[3] See Ridge & Hurley [2020] FCCA 1097.
Mr Ridge appeared on his own behalf during the trial and currently continues to represent himself. Ms Hurley has engaged the same firm of solicitors throughout the case.
The final orders made by Judge Heffernan, in May of 2020, can be summarised as follows:
·X was to live with her mother who was conferred with sole parental responsibility for her;
·X was to spend time with her father on alternate Sundays between 10.00 am and 4.00 pm with handovers to occur at one of two Children Contact Centres (“CCS”) operated by C Centre within the metropolitan area of Adelaide, namely at Suburb D and Suburb E;
·The parties communicate in writing, limited to once per fortnight, via either a parenting app or a communication book;
·The father be able to obtain educational information about X from her school and to attend school events, subject to the proviso that he not approach the mother;
·The father be injuncted from harassing the mother or any members of her family or communicating with the maternal grandparents.
THE CURRENT APPLICATIONS
The father’s application current was filed on 19 May 2023 and initially centred on Mr Ridge being able to talk with X weekly via suitable electronic means and spend time, with him on one day per week from 10.00 am until 6.00 pm with handovers to occur in carefully controlled circumstances. In this regard, he proposed a professional nanny service.
The application was supported by a brief affidavit, which centred on Mr Ridge’s criticisms of Ms Hurley for failing to engage with him in any process of family dispute resolution initiated by him, in the context of her (Ms Hurley) preventing X from maintaining any form of connection with members of her paternal family, particularly her father.
This was augmented by a longer affidavit filed 30 October 2023, which indicated that the last occasion on which the child was exchanged between the parties at a CCS was 12 July 2020 at Suburb E. Thereafter, Mr Ridge deposed that he had sent Ms Hurley a message in 2023, requesting details of a handover location for X’s birthday. No explanation was provided as to why this hiatus had occurred.
Mr Ridge had other complaints about the mother’s care of X, which included that she had been exposed to family violence in her mother’s home; was being subject to emotional abuse by being alienated from her father and forced to attend psychological assessment by her mother; was not attending school regularly; and the maternal grandparents had allowed sexual abuse of a child under their care and therefore, presumably presented some form of risk to X.
Ms Hurley responded to this application on 28 November 2023. On a final basis, she seeks that the father spend no time with X, which necessarily would require an alternation to the orders made by Judge Heffernan. In the interim, she sought the suspension of the relevant orders of Judge Heffernan regarding the father spending time with the child and pending final hearing a family report be prepared and Mr Ridge undergo some form of psychological assessment.
In her supporting affidavit, Ms Hurley provided information regarding the significant gap, now approaching four years, during which X has not engaged directly with her father. Ms Hurley deposed that Mr Ridge had been convicted of offences in late 2020 and sentenced to a term of imprisonment.
As recently as mid-2023, Mr Ridge was serving a portion of his sentence on home detention. Ms Hurley also provided a letter, addressed to her, dated mid-2020, which indicted that C Centre had suspended Mr Ridge from utilising its CCS handover services from that date.
These reasons for judgment relate to an application brought by the mother, pursuant to the provisions of section 102QAB of the Act, on 21 May 2024, to summarily dismiss the father’s recent application (19 May 2023) which proposes that in the interim he spend time with X one day per week and have telephone contact with her once per week. Subsequently, on a final basis he proposes that the parties share parental responsibility of X and she spend time with each of her them on a weekly basis.
In addition, or alternatively, the mother wishes the court to make an order pursuant to the provisions of section 102QAC of the Act, which would have the effect of restraining Mr Ridge from continuing his proceedings and instituting further proceedings, on the basis that they would cause both her and X to suffer harm.
If her application is successful and Mr Ridge’s application is summarily dismissed and he is prevented from bringing any future applications on the basis that they would occasion harm to both her and X, Ms Hurley seeks to discharge the orders made by Judge Heffernan 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.
The orders she seeks can be summarised as follows:
·Ms Hurley have sole decision making in relation to all major long term decisions in respect of X;
·X live with her;
·The child spend no time with the father noting that once she attains fourteen years of age, she may spend time with her father and communicate with him as she so wishes from time to time;
·The parties download the AppClose parenting app to exchange information about X on a fortnightly basis;
·The father be authorised to obtain the child’s school reports and photographs at his expense;
·The father be restrained and necessary injunctions issued restraining him from:
·Communicating with the maternal grandparents by text messages or email;
·Sending any harassing communications to Ms Hurley or members of her family;
·Communicating with or approaching the mother;
·Contacting X’s school other than to obtain school reports and photographs of her;
·Attending at the child’s school or extracurricular activities other than with her acquiescence once she has turned fourteen years of age; and
·Denigrating the mother.
THE EARLIER PROCEEDINGS
The documents produced in the former proceedings between the parties are voluminous and are contained within nine cardboard boxes.
Issues at the trial before Judge Heffernan centred on the following matters:
·The parties’ extremely poor and fractious relationship, as parents, characterised by extreme mistrust and poor communication;
·The father’s admitted alcohol dependence, which had resulted in him receiving counselling and alcohol rehabilitation and his arrest, on one occasion in public in late 2015, when X had been in his care and he had been found to be intoxicated;
·In this context, the mother alleged that the father’s consumption of alcohol had escalated after the termination of his employment at some time in 2012, when he had been found to have committed acts of dishonesty in his employment. Mr Ridge has not been formally employed since;
·The father’s allegations that the mother and maternal grandmother each suffered from psychiatric illness, which prevented the mother being psychologically capable of supporting X to have a proper level of paternal relationship with him. Essentially, the father asserted that the mother and those associated with her, had alienated X’s affections, so far as he was concerned;
·The mother’s allegation that the father had been verbally abusive towards her and had harassed her leading to the police successfully obtaining a family violence order against him, in early 2016, which the mother alleged the father had breached on at least 10 occasions;
·The mother’s allegations that the father’s alcoholism, mental health issues – alleged to be a mental health disorder – continual denigration of her and inability to comply with court orders represented a direct risk to the safety and psychological health of X;
·The location of handover in respect of X. Orders were made for handovers to occur at F Venue and G Venue. In addition, at one stage, handovers were to be between the maternal grandmother and Mr Ridge at the Suburb J police station; and
·The mother’s evidence that past interactions between her and the father had caused her to suffer post-traumatic stress disorder.[4]
[4] Hereinafter referred to as PTSD.
At the trial the parties gave evidence and were cross-examined; as were Ms K and Mr L, the maternal grandparents; Ms H, a social worker and family consultant, who had prepared three family reports; and Ms M, a clinical psychologist, who had been treating the mother for PTSD since 2015 during approximately fifty consultations.
Although, I am not bound by any of Judge Heffernan’s findings and these are to be approached as fresh proceedings, in exercising the discretion conferred up me pursuant to section 102QAC, I am required to consider the history of the proceedings previously instituted by the parties concerned under the Act and their possible cumulative effect on any person concerned. In this context, in my view, it is useful to extrapolate some of the comments made in the judgment.
Of Mr Ridge, Judge Heffernan said as follows:
A matter that has become abundantly clear during the course of proceedings and in the affidavit material the father has filed is the intractable nature of his thinking on matters. Once a view is formed, it seems to persist and he shows a determination and sense of entitlement to act on it, irrespective of whether objective circumstances support the notion or not. One such example is his insistence on the proposition that the mother’s mental health and that of her family pose a risk of harm to the child. Another example is his deeply-entrenched and negative attitude towards the maternal grandmother, which has regrettably extended beyond the ambit of the parenting matters the subject of this trial, and has resulted in a singularly unsuccessful attempt to sue her for defamation. He served those proceedings on the maternal grandmother during a court‑ordered handover. Of more direct concern to these proceedings is that the father has, by his own count, reported alleged harm and abuse of the child at the hands of the mother, her family and associates to the Department of Child Protection on at least 17 occasions between 2017 and 2019. There is no ongoing investigation by the Department of Child Protection, no evidence that the mother has been required to enter a safety plan, and it would seem that no action of substance has been taken by the Department or South Australia Police in relation to any of the father’s complaints.[5]
[5] Ridge & Hurley [2020] FCCA 1097 at [68].
Judge Heffernan summarised Ms M’s evidence as follows:
[Ms M] is a registered clinical psychologist, who at the time of giving evidence had had over 50 consultations with the mother. In her opinion, the mother suffers from post-traumatic stress disorder as a result of psychological harm she experienced during the course of her relationship with the father and the subsequent breakdown. [Mr Ridge] triggered that condition and, as a result, the mother suffers from anxiety and depression due to her contact with him. The mother’s concerns about [Mr Ridge] have left her in a constant state of hypervigilance and fear. Appropriate management of [Ms Hurley]’s condition made it preferable that she not be in the same room with the father, that he not speak to her directly, and that she continue to have therapy for her PTSD.[6]
[6] Ridge & Hurley [2020] FCCA 1097 at [122].
In her three family reports, Ms H summarised the dilemma which the case presented. On the one hand, it was clear to her that the parents concerned had a highly conflicted and compromised co-parenting relationship, exposure to which was having a detrimental effect on X. On the other hand, she was noted to engage positively with each of her parents. In this context, Ms H hypothesized in the following terms:
[W]hilst it appeared likely that [X] struggled with her management of transition between the two homes it was hypothesised that this was likely to be as expected of a child her age who failed to have the active support of two openly-communicating adult caregivers. It was also possible that it was also a result of divided loyalties, as well as [X] enjoying her time with her father and wanting more time. This hypothesis would be consistent with and supported by the observations made of [X]'s time with her father at both Family Assessment. These being positive interactions suggestive of a secure relationship shared between both her mother and her father.[7]
[7] See Family Report dated 14 February 2018 at [43].
The final orders made by Judge Heffernan axiomatically reflected his attempt to balance the two horns of the dilemma, which the case represented and which he described as a tragedy and the circumstances surrounding it as far from optimal.
In this context, Judge Heffernan made a finding that what was then the legislative based presumption of equal shared parental responsibility had been rebutted by issues relating to family violence emanating from the father to the mother and given this factor, when coupled with the parties’ compromised ability to communicate effectively, Ms Hurley, as X’s clear primary carer, should be awarded sole parental responsibility for her.
In these circumstances, in order that there be some prospect of X continuing to derive some prospective benefits from maintaining some form of meaningful level of relationship with her father, the final orders in question were made.
These orders envisaged modest time and the negation of any prospect of the parties coming into direct contact with one another, which was motivated by prospective concerns relating to the mother’s psychological vulnerability.
The impression I have from reading the judgment was that the trial judge was attempting to balance what Ms H had seen as some positive aspects arising from the relationship between X and her father with factors relating to Mr Ridge and his personality and the manner in which he had previously interacted with the mother and her family, which he regarded as being emotionally corrosive to her.
As indicated above, issues to do with where and by whom X was to be exchanged between the parties were a source of much controversy during the trial in the context of the parties’ severely compromised parenting relationship and apparent incapacity to communicate in what the mother characterised as circumstances of extreme coercive and controlling behaviour.
In this context, it is apparent that the court considered a number of locations for handover. As will be delineated in due course, none of these locations proved successful and as far as F Venue and G Venue (and indeed a library operated by a municipal council) proved unsuccessful and indeed resulted in Mr Ridge instituted proceedings against each of these entities.
In addition, it seems to be the case that Mr Ridge found it unacceptable to have to attend a police station to collect X and this led to him not attending to collect her. In these circumstances, at final hearing, Judge Heffernan had few options available to him in this regard, given his finding that it was not calculated to be in X’s best interests for her parents to manage the handover themselves.
OTHER ISSUES
What is clear is that the orders envisaged by Judge Heffernan soon broke down, as had earlier orders made by him, in an attempt to govern the problematic aspects of the parties’ co-parenting relationship. This led to Mr Ridge commencing a contravention application against Ms Hurley in mid-July of 2020.
As indicated above, it is the mother’s case that there was an incident at Suburb D Children’s Contact Service in mid-2020, which led to the relevant organisation – C Centre – withdrawing its supervised handover service from the parties. It is the mother’s evidence that X has indicated to her that she does not want to spend time with her father.
For reasons which I cannot determine from the records available to me, Mr Ridge’s property application was not dealt with at the same time as the parenting proceedings. Mr Ridge sought an equal division of assets. Ms Hurley sought the dismissal of the property aspects of the case. Ms Hurley disclosed a motor vehicle of modest value and $6,000.00 in superannuation. She deposed to owing more than the value of her car. Mr Ridge also disclosed a motor vehicle also of modest value; no superannuation and unpaid income tax of approximately $200,000.00.
Mr Ridge filed a notice of appeal in respect of the orders of Judge Heffernan, made in May 2020, on 4 June 2020. The appeal contained 112 grounds. Orders were made for the father to file an appeal book on or before 20 November 2020. He did not do so.
Issues subsequently arose as the efficacy of service of the contravention application on Ms Hurley, given that it had been sent electronically to her then solicitor, who had ceased to act for her when the trial concluded.
Subsequently, it would appear to be the case that Ms Hurley was served with the contravention application and the property aspects of the case were referred to a call-over to be fixed for trial. Ms Hurley had filed affidavit material indicating her view that there was no property available for division and the parties had only debt.
As previously indicated, whilst the contravention application and the property aspects of the case were proceeding through the court, at some stage late in 2020, Mr Ridge went to trial, on charges and was subsequently sentenced to a term of imprisonment.
It seems thereafter, he did not attend court or instruct solicitors to attend on his behalf. In these circumstances, on 29 October 2020, Judge Heffernan dismissed the contravention application for want of prosecution. On 8 June 2021, the property proceedings were listed for an undefended hearing by Judge W Neville.
Ultimately the undefended hearing was finalised by Alstergren CJ on 27 January 2022. The notations to the relevant orders indicated an absence of actual assets but only debts, which were allocated in a proportion of 70/30% for discharge by Mr Ridge and Ms Hurley respectively.
As indicated above, Mr Ridge did not take the procedural steps required of him to advance his appeal against the orders of Judge Heffernan. On 1 December 2020, his appeal was deemed abandoned. I accept at the time Mr Ridge was incarcerated.
On 20 April 2020 – after evidence in the trial before Judge Heffernan had been completed but prior to the delivery of judgment – Mr Ridge commenced proceedings, in this court, against the maternal grandmother seeking to restrain her from living with X and directing that Ms K undergo a psychiatric examination. In supporting material, Mr Ridge described Ms K as a psychopath and pathological liar.
In her answering affidavits opposing the father’s application, Ms K provided details of litigation which Mr Ridge had commenced against her and others. That litigation is copious, and I will attempt to summarise it as efficiently as I can:
·In 2018 the father commenced proceedings against Ms K for defamation. The case was brought after Mr Ridge had been cautioned for stalking Ms K. It was summarily dismissed and costs awarded. This award was unsatisfied, and Mr Ridge was made bankrupt.
·Mr Ridge unsuccessfully sought a review of the sequestration order.
·In 2018 Mr Ridge commenced defamation proceedings against F Venue, which at one stage had been used as a handover venue, until the venue requested that it not be so utilised. Mr Ridge claimed the letter to this effect was defamatory of him and commenced proceedings. The application was dismissed and costs awarded against him.
·A similar claim was brought against N Council, when the parties were using its library as a handover and the library had complaints about Mr Ridge’s conduct, which it put in writing.
·Mr Ridge also sued G Venue which had been involved in handovers and which also asked that they not be so utilised.
·Mr Ridge has commenced numerous proceedings in what was then the Federal Magistrates Court in respect of allegation of breaches of Commonwealth Discrimination Law and Intellectual Property Law against many organisations; none of his applications have been successful.
·He has commenced proceedings against members of his family and other companies. Again, without success and in many cases with an award of costs against him.
In her affidavit filed on 27 August 2021, Ms K deposes as follows:
Given the extensive history of proceedings involving the father, both pertaining to myself and conducted in other Courts in South Australia as well as proceedings involving the father as against my daughter [Ms Hurley] as well as other Respondents and/or Defendants against whom the father has in the past instituted proceedings, I seek orders that the father be declared a vexatious litigant pursuant to section 102QB of the Family Law Act 1975 and pursuant to section 88Q of the Federal Circuit Court Act 1999.
The father is an undischarged bankrupt, long-term unemployed and currently in receipt of Centrelink benefits. He therefore claims an exemption from the lodgement of all fees in the Federal Circuit Court Registry. Due to the father's dire financial circumstances, he is unlikely and unwilling to pay any order for costs that may be made against him.
The father claims to be a student and has self-represented in all cases except for some criminal matters. The father fails to accept or comply with Court rulings and orders. Once the father initiates an application the other parties are then bound to defend themselves and drawn into the vortex. The other parties pay exorbitant amounts in legal fees and yet court-awarded costs to these other parties remain unpaid by the father. The father's frequent and baseless claims disadvantage genuine legal applications waiting to be heard.[8]
[8] See affidavit of Ms K filed 27 August 2021 at [5] – [7].
On 1 September 2021 Judge Dickson dismissed Mr Ridge’s application against Ms K and awarded her costs in an amount of $2,000.00. When his Honour made the undefended property orders Alstergren CJ gave Ms Hurley liberty to approach his chambers, if she wished to make a vexatious litigant application against Mr Ridge. As yet no such order has been made.
A schedule has been prepared of the various actions commenced by Mr Ridge in the Federal Circuit Court and another Court. There are ten in the former and thirteen in the latter. Mr Ridge has sued the maternal grandfather, alleged to relate to matrimonial property. He has brought collateral proceedings against the mother, also relating to property issues. Mr Ridge has not been successful in any of his applications, which have mostly been struck out or dismissed with costs awarded against him or dismissed for want of prosecution.
As a consequence of his failure to file an appeal book, Mr Ridge’s appeal against the orders of Judge Heffernan was struck out. On his release from prison, Mr Ridge sought to reinstate the appeal. This application was first dismissed by the appeals registrar but was subject to review which Campton J dismissed on 19 September 2023.
On 6 June 2023, the father filed a contravention application against the mother alleging that she had contravened the orders of Judge Heffernan. The original application contained sixty-eight counts. It was listed for hearing before Judge Betts on 26 March 2024. The application was dismissed and Mr Ridge was ordered to pay costs fixed in an amount of $1,200.00.[9]
[9] See Ridge & Hurley [2024] FedCFamC2F 569.
Judge Betts characterised the application as a waste of time, noting that Mr Ridge had been absent from X’s life for over two years, due to his incarceration, which could in no way be attributed to any conduct arising from Ms Hurley. He further noted the express terms of Judge Heffernan’s order relating to handover and the fact the C Centre had withdrawn its services.
Ms Hurley’s evidence is that Mr Ridge was issued with a stalking order, relating to her, by SAPOL, in 2016. Subsequently, she was the subject of a family violence order, which became final in 2017. It is an indefinite order. In the trial before Judge Heffernan, Ms Hurley alleged that Mr Ridge had breached this order on several occasions and had been arrested by police in 2018.
In mid-2020 Mr Ridge applied to have the family violence order revoked. He withdrew the application, from prison in late 2020. On his release, in 2023, he again applied to have the family violence order revoked. The application has been listed for hearing. I am unaware of the outcome.
THE MOTHER’S EVIDENCE
Mr Ridge’s current application came before me on 15 December 2023. Given the circumstances, I determined to suspend the operation of the aspects of Judge Heffernan’s orders, which provided for Mr Ridge to spend time with X. I did so because of the protracted period during which X had not interacted with the father and the obviously fraught circumstances generally. It was in this context that the current Family Report was ordered.
It is the mother’s case that the symptoms of her PTSD moderated during the period of time Mr Ridge was incarcerated but her symptoms have returned following his release, during which period he has instituted seven sets of proceedings against her.
The mother has re-partnered. Her current partner has two children, from an earlier relationship who are aged 11 and 10. They live with Ms Hurley, their father and X and spend time with their mother on weekends. The three children attend sports lessons together. On 8 July 2023, after spending some time with their mother, they were sent home with a package addressed to X, which contained clothes and gifts from Mr Ridge.
Ms Hurley deposes the Mr Ridge’s use of her partner’s former family to interact with X as being upsetting and highly inappropriate, particularly given what she would characterise as Mr Ridge having stalked her in the past. She also asserts that X found the gift to be distressing. When viewed through the lens of Mr Ridge’s previous behaviour towards her, she regards it as highly coercive and controlling conduct.
In late 2023, Mr Ridge began to purchase lunch for X at her school. Ms Hurley’s solicitors requested, in writing that he cease this practice. He did not do so. I subsequently made an order, on the mother’s application, that an injunction issue and he be restrained from this practice.
Ms Hurley also reports that Mr Ridge has approached the sports club which X attends seeking information about the child. The club officials apparently sought legal advice in respect of what they considered to be Mr Ridge’s intrusive, oppressive and inappropriate communications with them.
In her affidavit filed in support of her current application, Ms Hurley deposes as follows:
This year [X] attended at a General Practitioner as she has developed symptoms of anxiety stemming from her relationship with the father and the issues of time spending borne from the previous proceedings, and from the continued purchase of school lunches by the father for her. These symptoms include [twitches and fidgeting] and withdrawing from her surroundings. I have been working with [X] to build resilience in the face of her anxiety. [X] continues to attend at a psychologist.
I have on occasion tried to talk to [X] about seeing the father or talking to him, but she remains steadfast that she "does not want to see him".[10]
[10] See affidavit of Ms Hurley filed 21 May 2024 at [45] – [46].
At this stage, Ms Hurley has not provided any formal medical/psychological reports from either her or X’s practitioners. As Mr Ridge has not directly interacted with X for a period of around four years, he is not in a position to provide direct evidence in rebuttal, but it is his position, as I understand it, that the mother is either manipulating X or has exaggerated and or fabricated her evidence in respect of what she asserts is X’s attitude towards him.
In this context, the court must consider essentially what useful purpose will be served by allowing the matter to proceed further and for Ms Hurley to be potentially cross-examined about these controversies and, of its price, both in financial terms (both to Ms Hurley and the community) and in any emotional cost to be borne by both the mother and X. In this context, in my view the Family Report is likely to be central.
At this juncture, there would appear to be a final intervention order in place protecting Ms Hurley. Accordingly, if the matter proceeds to a final hearing, the provisions of section 102NA, which appears in Part XI, Division 3 of the Act under the heading Cross-examination of parties where allegations of family violence would apply. Mr Ridge would be prevented from directly cross-examining Ms Hurley. Rather any cross-examination required would have to be conducted by a legal practitioner.
In order to ameliorate the possibly harsh consequence of the application of the section and prevent any possible miscarriages of justice, which may conceivably arise if evidence is not properly tested, the Commonwealth Government has instigated a scheme known as the Commonwealth Family Violence and Cross-Examination of Parties Scheme, which funds legal representation of any party subject to a ban on cross-examination.
In my view, it is incumbent on the court to consider the implications of a possible unwarranted imposition on the public purse, through the mandatory application of the scheme, by allowing a case to proceed, which on proper analysis has no prospects of being successfully prosecuted.
THE FAMILY REPORT
Ms B described X as a friendly child, who was able to participate in the interview process required for the report. Mr Ridge was described as fixated on his negative view of Ms Hurley. To Ms B, Ms Hurley indicated her concerns that proceedings between her and Mr Ridge, commenced in 2015, were still continuing.
Ms B recorded how Ms Hurley described X’s current psychological status in the following terms:
Anxiety and sleep for [X] was identified by [Ms Hurley] as a current issue. She described [X] as not having been a good sleeper for a long time, struggling both to fall asleep and to remain asleep. In more recent times, [Ms Hurley] said [X] had slept through most nights. In the last six months, however, [Ms Hurley] said [X]’s experiences of anxiety had worsened, and she felt this coincided with [Mr Ridge]’s release from prison and “making his presence known”, such as having a parcel delivered to them and ordering lunch orders for her at school.[11]
[11] See Family Report dated 8 April 2024 at [40].
Some significant aspects of X’s interview with Ms B are recorded as follows:
[X] said she did not want to spend time with her father and said she had not seen him for three years. [X] was unable to recall specific details, but said she recalled not wanting to spend time with him. [X] was clear she had not had contact with her father for the past three years but said “he does order me lunch orders most days”. [X] said this had started “last year” and said she would give the lunch orders to her friends or put it in a bin. [X] said the canteen did not want the lunch orders returned to them.
[X] was asked about how she felt about this. She explained “I don’t want it from him…I don’t want to see him”. She said, “he makes me get it (lunch orders) and it makes me feel uncomfortable”. [X] explained that she knew her father “did something” but said she “did not know what it was”, adding “I don’t want to go with him …I don’t want anything from him”. [X] spoke about having received a gift the year prior that had come from her father via her stepsiblings. [X] said she worried about this …
[X] was asked her thoughts about what she would like for the future. She commented “I just want lunch orders to stop” and said she was aware her mother had communicated this to her lawyer in an attempt to get them to stop. Despite this, she said [Mr Ridge] continued to order lunch orders for her. [X] said she worried about [Mr Ridge] no longer being on home detention as she understood he would no longer be “tracked”. [X] was firm she did not want to spend time with [Mr Ridge], stating she was unsure why he was in jail and she did not know if this presented a safety risk to her.[12]
[12] See Family Report dated 8 April 2024 at [64] – [65] & [67].
Ms B characterised Mr Ridge’s continued purchasing of lunch for X as a subtle but very real form of coercion and control, which he was exercising over both X and her mother. Essentially, whilst being aware that his actions were not likely to be welcomed but would be viewed as provocative, nonetheless he was intent on asserting his presence in the lives of X and her mother, knowing this would cause them discomfort. Axiomatically, Ms B did not consider this to be child focussed behaviour.
In this context, Ms B was also concerned at the volume of legal proceedings, which Mr Ridge had instituted against Ms Hurley and those associated with her. Again, when viewed through the lens of family violence, it was considered to be plausible that Mr Ridge had engaged legal mechanisms as means of continuing to attempt to control and bully Ms Hurley.
Ms B described Ms Hurley as a competent and caring parent with whom X shared a positive and secure relationship. Ms B elected not to observe X with Mr Ridge. In the concluding paragraph of her report, Ms B wrote as follows:
If the Court shares the report writer’s concern about the ongoing nature of coercive controlling behaviour by [Mr Ridge], then resumption of time spending between [Mr Ridge] and [X] would not be supported. Moreover, the report writer considered a continuation of [Ms Hurley] having sole parental responsibility was considered appropriate.[13]
[13] See Family Report dated 8 April 2024 at [82].
In this context, Ms B recommended a continuation of X’s current parenting arrangements, namely that she live with her mother, who should continue to have sole parental responsibility for her. Given her additional recommendation that, if the case proceeded further, X be independently represented, it seems implicit that Ms B regarded the continuation of the proceedings as constituting some form of risk for X.
I appreciate that Ms B’s evidence and methodology have not been subject to any scrutiny through a process of cross-examination. In addition, as the paragraph quoted above demonstrates, Ms B was scrupulous not to transgress into the court’s fact-finding role, including in respect of any assessment regarding whether Mr Ridge’s past behaviour could be considered to constitute coercive and controlling family violence.
However, if the court did make such a finding, Ms B recommended against any resumption in the relationship between Mr Ridge and X. Accordingly, in my view, the central issue in any subsequent hearing will be on whether Mr Ridge has exposed either X or her mother to family violence and what are its implications for the well-being of both.
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.
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 Ms Hurley and indeed X 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.
THE FATHER’S EVIDENCE
Since commencing these proceedings, Mr Ridge has filed eleven affidavits, of which four are of significant length. He is critical of the mother for not being willing to take part in mediation with him. He concedes that his relationship with X is not currently viable and, in this context, has indicated his willingness to attend family reunification therapy.
He has deposed to adoring X and has provided many photographs of her taken by him, prior to the breakdown of the relationship between the two, which indicate X engaging in everyday activities such as riding a bike, attending a playground and petting pets with her paternal grandmother.
A strong element of his case is that X has been deprived of having any form of relationship, let alone a meaningful one, with him and members of her paternal family. In this context, he points to the finding of Judge Heffernan that he genuinely cares for X and the expert evidence of Ms H, who noted positive elements in how X and her father interacted.
Necessarily, he asserts that it is axiomatically contrary to X’s best interests for the court to, in effect, permanently sever her paternal relationship notwithstanding the obvious difficulties in the parties’ co-parenting relationship. In this context, Mr Ridge is highly critical of Ms Hurley asserting that it is she, rather than he, who has constantly breached court orders.
He concedes that he sent the child a parcel of clothes, which he would characterise as an appropriate thing for him to do. He is critical of Ms Hurley that in one of the parties’ court appearances before a magistrate she said she had stopped X having the clothes, which she had thrown away.
Mr Ridge is critical of Ms B’s recent report in that it did not include any observations of him and X. In this sense, by necessary implication, he submits that it is premature for the court to dismiss his application as more inquiries need to be undertaken to assess the current level of viability of his relationship with X and how it can be therapeutically repaired.
In this context, he proposes that either:
·The court order six supervised sessions at Suburb D CCS or another CCS; or
·Private supervised contact by Dr O; or
·Reunification counselling to be provided by qualified counsellors and clinicians.
He has not indicated how any of these services would be paid for or if CCS is prepared to withdraw its ban on him using its services.
It is Mr Ridge’s evidence that between late 2016 and July 2020, he had approximately 200 visits with X, many of which included her paternal grandmother.
I have not seen Mr Ridge being cross-examined in court. He has represented himself throughout the proceedings to date. He has always been quietly spoken and courteous to me. He is clearly an articulate person with a strong grasp of written professional English. As a result, he has no difficult in compiling legal documents and affidavits. He presented as comfortable in the formal atmosphere of the court room.
LEGAL CONSIDERATIONS
At the outset, it is necessary to define the concept of family violence as it pertains to matters falling for determination under the Act. Family violence is defined by section 4AB(1) of the Act. It means:
[V]iolent, threatening or other behaviour by a person that coerces or controls a member of the person’s family, or causes the family member to be fearful.
The legislature has provided a list of examples of behaviour which may constitute family violence in section 4AB(2) of the Act. Some of these examples are:
•an assault;
•a sexual assault or other sexually abusive behaviour;
•stalking;
•repeated derogatory taunts;
•the killing of an animal;
•preventing the maintenance of family ties;
•intentionally damaging or destroying property; and
•the withholding of financial support.
The above incidents are not, in themselves, definitional of family violence. Rather they are examples of conduct which may constitute family violence. The definition to be applied is contained in sub-section (1). The essential elements of the definition are that the behaviour in question, to amount to family violence must coerce or control another family member. The behaviour need not be violent, in itself, or cause fear in the person to whom it is directed. It is a definition directed towards coercion.
The impugned conduct is centred on power in relationships and the use of such power to control another family member. Thus, restricting access to money, though not intrinsically violent, can amount to family violence if the person who is its object feels controlled by the person withholding such support.
Accordingly, family violence means not only violence, which causes a family member to be fearful, such as a direct assault to the person, but also encompasses behaviour that unreasonably coerces or controls that person. This is the gravamen of Ms Hurley’s case. She asserts that through his continual invocation of legal processes against her and his attempts to remind her and X of his presence, Mr Ridge is attempting to coerce and control her. She would assert that this latter behaviour is a form of stalking. Certainly, it is her case that it has caused her and X psychological distress.
Pursuant to section 4AB(3) of the Act, a child is exposed to family violence if he or she sees or hears family violence or otherwise experiences the effects of family violence. Again, in section 4AB(4), the legislature has included examples of conduct which may amount to such exposure, which include:
•overhearing threats;
•seeing or hearing an assault;
•comforting or providing assistance to a member of the child’s family, following an assault;
•cleaning up after property has been damaged; and
•being present when police attend an incident involving an assault.
Again, these examples are not definitional of whether a child has or has not been exposed to family violence. What is pivotal is that the child concerned experiences its consequences. It is clear that if the continual sending of lunch unrequested to X constitutes stalking, she has been exposed directly to it. In addition, it would appear to be the case that X must be aware of the emotional distress being occasioned to her mother of these proceedings and others related to them.
The current proceedings are to be regarded as child related proceedings to which the provisions of Division 12A of the Act apply. The legislative intent of this Division is directed towards the minimisation of the potentially deleterious consequences for any child likely to be affected by the litigation of which they are the subject.
Pursuant to section 69ZN of the Act, the court is directed to give effect to a number of delineated principles in respect of how proceedings relating to children are to be conducted. The effect of these principles is to ensure that the court’s focus always remains on the best interests of the child concerned rather than on the perceived rights of their parents or others.
In general terms, these principles, of which there are five in number, can be summarised as follows:
·The court is to consider the needs of the child concerned and the impact the conduct of the proceedings may have on that child;
·The court is to actively direct, control and manage proceedings involving children;
·The court is to conduct proceedings to ensure a child, or children and parties are safeguarded from exposure to family violence;
·Proceedings are to be conducted in a manner that will promote cooperation and child-focus between the parties concerned; and
·Proceedings are to be conducted without undue delay, formality and legal technicality.
In this context, pursuant to the provisions of section 69ZQ(1)(a) the court has authority to decide which issues raised by the parties require its full investigation and hearing and which may be disposed of summarily.
As noted above, it is an essential element of Ms Hurley’s case that Mr Ridge’s continual recourse to various forms of litigation against her does, in itself, constitute family violence. As such the court is under an obligation to conduct its processes in a way which safeguards parties and children from further exposure to family violence. As such, the dilemma presented by this case is obvious given the axiomatically detrimental consequence the continuance of it must constitute for Ms Hurley and X.
Necessarily, any court proceedings have the potential to be emotionally traumatic for the individuals concerned in them, including children, who may have to be interviewed by experts and ask to comment on the behaviour of their parents. In exercising its discretion, arising under any of the various provisions of Part XIB of the Act, the court must weigh up and balance many competing factors.
Although the court must be mindful of Mr Ridge’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.
Pursuant to section 190 of the Federal Circuit and Family Court of Australia Act 2021 all litigation in this court is subject to what is characterised as the court’s overarching purpose to conduct the litigation before it as efficiently and inexpensively as possible.
In this case, the evidence indicates that Ms Hurley has elected to be represented. Mr Ridge elects to represent himself. He is impecunious and, as such, is immune from the implications of any cost orders. In my view, in the context of its application of the overarching purpose, the court is entitled to consider the costs implications of envisaged litigation on any party affected by it.
In this context, the court must also bear in mind the child-related nature of these proceedings and the fact that this case is fundamentally an inquiry into what is the best outcome for the child concerned not an examination of the rights – perceived or otherwise – of parents to have an adjudication into issues in dispute between them.
Part VII of the Act deals with orders relating to children. This Part has recently been subject to significant amendment. However, it remains the case that before making any particular parenting order, the court must regard the best interests of any child concerned as the paramount consideration.[14]
[14] Family Law Act 1975 (Cth) ss 60CA and 65AA.
How a court determines what is in a particular child’s best interests is by reference to a list of six matters contained in section 60CC(2) which can be summarised as follows:
·The arrangement which will best promote the safety of a child particularly from being subject to family violence, abuse, neglect or other harm;
·Any views expressed by the child;
·The developmental, psychological, emotional and cultural needs of the child;
·The parental capacity of each person who has or is proposed to have parental responsibility to promote such developmental, psychological, emotional and cultural needs;
·The benefits accruing to the child of being able to have a relationship with his or her parents and those who are significant to the child, where it is safe to do so; and
·Anything else that is relevant to the particular circumstances of the child.
In this context, it is to be noted that although the court is directed, as one of six factors which are not ranked in overall importance, to consider the possible benefits which may accrue to a child from having a relationship with a parent, it is subject to the proviso that it should be safe to do so.
It would appear to be the mother’s case that there is no safe way in which the father can interact with X, given the absence of any obvious location or mechanism for her exchange between her parents; the withdrawal of C Centre from such a process; the unacceptability of a police station to Mr Ridge; and the vexed history of other neutral locations and individuals being involved in handovers.
In addition, I acknowledge that any views expressed by a child are also a matter which the court must consider. Section 60CD delineates the means by which a court may inform itself of any views expressed by a child.
These include a family report and the appointment of an Independent Children’s Lawyer. In this case, X’s views have been canvassed through the Family Report compiled by Ms B. In my view, this must be regarded as a significant piece of evidence.
As indicated earlier, it is Mr Ridge’s position that Ms B’s report is incomplete and, as a result, should be given little if any weight. He also points to its provisional nature, given Ms B herself has not been cross-examined about her methodology and why she elected not to bring Mr Ridge into contact with X.
In these circumstances, it would appear to be his position that more needs to be done to ascertain what are X’s views about interacting with him and perhaps an Independent Children’s Lawyer should be appointed. Certainly, he asserts that it is premature to dismiss his case.
As indicated above, these are child related proceedings to which the provisions of Division 12A of the Act apply. The legislative intent of this Division is directed towards the minimisation of the potentially deleterious consequences for the children affected by the litigation concerning them.
In my view, it is axiomatic, from both the contents of the Family Report and the fact that X has not interacted directly with her father for a period in excess of four years that she is to be regarded as an emotionally vulnerable child.
In these circumstances the court has an obligation to prevent X being exposed to unnecessary litigation, involving the resolution of issues which are likely to be extraneous to her overall best interests, when the various considerations set out in section 60CC(2) are considered.
The provisions of Part XIB are ancillary to these powers and provide two major means of sparing children and their relevant carers from such unnecessary litigation, which can be characterised under one of three categories, which can be summarised as follows:
·Unmeritorious proceedings on account of an absence of reasonable prospects of success;
·Proceedings which are harmful to a party or a child concerned in them;
·Vexatious proceedings.
This case is concerned with the first two of these categories, which are covered by the provisions contained in section 102QAB and section 102QAC.
Firstly, section 102QAB of the Act provides a mechanism for the court to summarily dismiss an application. In particular, sub-section (2) provides as follows:
(2)The court may make a decree for one party (the first party) against another in relation to the whole or any part of a proceedings if:
(a)the first party is defending the proceedings or that part of the proceedings; and
(b)the court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceedings or that part of the proceedings.
Section 102QAB(3) provides a gloss to this provision. It provides that a proceeding need not be either hopeless or bound to fail to have no reasonable prospects of success.
In Lindon v Commonwealth of Australia (No 2) (“Lindon”),[15] Kirby J provided a list of principles applicable to summary judgment, of which the Full Court of the Family Court, in Stativa & Stativa,[16] provided the full synopsis in point form:
•It is a serious matter to deprive a party of access to the courts and the power to do so should be rarely and sparingly used;
•The party seeking summary dismissal must show that it is clear on the face of the other party’s documents that the other party lacks a reasonable cause of action or is advancing a claim that is clearly frivolous or vexatious;
•That a case appears weak and unlikely to succeed is of itself not sufficient to satisfy summary dismissal;
•If there is a serious legal question to be tried, then it should ordinarily be determined at a trial of the issues;
•Where, notwithstanding a defect in the pleadings, if it appears that a party may have a reasonable cause of action which has not been put in proper form, a Court will ordinarily allow that party to reframe the pleadings; and
•The “guiding principle” is doing what is just.[17]
[15] Lindon v Commonwealth of Australia (No 2) (1996) 136 ALR 251, 256 (Kirby J).
[16] Stativa & Stativa [2015] FamCAFC 170.
[17] See Stativa & Stativa [2015] FamCAFC 170 at [8] (Ainslie-Wallace, Murphy & Aldridge JJ).
In applying these principles, the court must not overlook what the High Court characterised as the negative admonition contained in provisions analogous to section 102QAB(3) of the Act [section 31A of the Federal Court Act 1976 (Cth)] that a proceedings, or part thereof may be found to have no reasonable prospects of successful prosecution even if it cannot be said that it is ‘hopeless’ or ‘bound to fail’.[18]
[18] See Spencer v Commonwealth of Australia (2010) 241 CLR 118, 139 [52] (Hayne, Crennan, Kiefel and Bell JJ).
In this context, the High Court said as follows:
[I]t is important to begin by recognising that the combined effect of sub-sections (2) & (3) is that the inquiry required in this case is whether there is a ‘reasonable’ prospect of prosecuting the proceeding, not an inquiry directed to whether a certain and concluded determination could be made that the proceedings would necessarily fail.
In this respect section 31A departs radically from the basis upon which earlier forms of provision permitting the entry of summary judgment have been understood and administered.[19]
[19] See Spencer v Commonwealth of Australia (2010) 241 CLR 118, 139 [52]-[53] (Hayne, Crennan, Kiefel and Bell JJ).
The jurisdiction of the court to dismiss a claim upon the basis that it discloses no reasonable cause of action is to be sparingly invoked.[20] The case must be very clear indeed to justify the summary intervention of the court to prevent a plaintiff submitting his case for determination … by the court.[21]
[20] See McKellar v Container Terminal Manager Services Limited (1999) 165 ALR 409, 415 [12] (Weinberg J).
[21] See McKellar v Container Terminal Manager Services Limited (1999) 165 ALR 409, 415 [13], citing Dey v Victorian Railway Commissioners (1949) 78 CLR 62, 91 (Dixon J).
In McKellar v Container Terminal Manager Services Limited, Weinberg J, after summarising the various authorities, relating to summary dismissal, said as follows:
[A] proceeding should not be dismissed summarily merely on the ground that it appears, at the early stage of the hearing of the motion brought for that purpose, to advance a highly implausible claim which will very probably fail, but only where the claim may properly be described as unarguable, and almost incontestably bad, or where the claim is otherwise objectionable as an abuse of the process of the court.[22]
[22] See McKellar v Container Terminal Manager Services Limited (1999) 165 ALR 409, 416 [18].
In this context, I also bear in mind what was said by Kirby J in Lindon:
An opinion of the Court that a case appears weak and such that it is unlikely to succeed is not, alone, sufficient to warrant termination. Even a weak case is entitled to the time of a court. Experience teaches that the concentration of attention, elaborated evidence and argument and extended time for reflection will sometimes turn an apparently uncompromising cause into a successful judgment (citations removed).[23]
[23] See Lindon v The Commonwealth (No 2) (1996) 136 ALR 251, 256 (Kirby J).
In Przybylowski v Australian Human Rights Commission (No 2), Perry J considered that section 31A of the Federal Court Act 1976 (Cth) set a lower threshold than previous tests for summary dismissal, which required cases to be manifestly groundless or hopeless before they warranted dismissal.[24] In my view, similar considerations must apply to section 102QAB of Act given the analogous provisions contained in sub-section (3).
[24] See Przybylowski v Australian Human Rights Commission (No 2) [2018] FCA 473 at [7] (Perry J).
Whilst bearing in mind the need for caution, her Honour indicated that the exercise of discretion under section 31A of the Federal Court Act 1976 (Cth) involved the making of value judgments in the absence of a full and complete factual matrix and argument.
In this context, Perry J endorsed the following comments of Reeves J in Australian Securities and Investment Commission v Cassimatis:
[T]he determination of a summary dismissal application therefore does not require a mini-trial based upon incomplete evidence to decide whether the proceedings are likely to succeed or fail at trial. Instead, it requires a critical examination of the available materials to determine whether there is a real question of law or fact that should be decided at trial. Each application for summary judgment or summary dismissal has to be determined according to its particular circumstances. What is required is a practical judgment of the case at hand. The relevant circumstances will partly depend upon the stage which the proceedings have reached. Among other things, this will affect the materials available to the Court considering the application, for example, whether pleadings have been exchanged, or discovery of documents has occurred.[25]
[25] See Australian Securities and Investment Commission v Cassimatis (2013) 220 FCR 256, 271 [46] (Reeves J).
In exercising this practical judgment, a demonstration that an aspect of a case that relied on the establishment of a question of fact that is fanciful, trifling, implausible, improbable, tenuous, or contradicted by all available documents or evidence was likely to be central in whether that case should be summarily dismissed. To the contrary, a case which raised a real question of fact of a substantial, plausible or weighty nature should not be so dismissed.
Justice Perry further summarised the principles applicable to the entry of summary dismissal pursuant to the statute in Riva NSW Ltd v Official Trustee in Bankruptcy[26] in the following terms:
[26] Riva NSW Ltd v Official Trustee in Bankruptcy [2017] FCA 188.
·The moving party bears the onus of persuading the court that the application has no reasonable prospects of succeeding;
·The effect of provisions such as that contained in section 31A is to lower the bar. It is not necessary to establish that an action is manifestly groundless or hopeless for a proceeding to be summarily dismissed;
·An assessment of whether a proceeding has no reasonable prospects of success necessitates the making of value judgments in the absence of a full and complete factual matrix and argument, with the result that the provision vests a discretion in the Court;
·This discretion may include whether to deal with the motion at once or at some later stage in the proceedings when the legal and factual issues have been more clearly defined;
·Although the threshold for summary dismissal has been lowered, the discretion must nonetheless still be exercised with caution;
·In this context, it was noted that the discretion was concerned with the bringing and defending of proceedings, not just with pleadings; with substance, not just with form;
·A mini-trial is not required. However, there must be a critical examination of relevant material to determine whether there is a real question of fact or law to be determined. As such each application for summary dismissal must be determined on its particular circumstances;
·The exercise involved is one of practical judgment, which will be influenced by the stage the proceedings have reached and the amount of material available to the Court;
·In applying these principles:
[T]he moving party is more likely to succeed if she or he demonstrates that the applicant’s success relies on a question of fact that is fanciful, trifling, implausible, improbable, tenuous or contradicted by all the available documents or evidence. Conversely … as a general principle, such an application is unlikely to succeed where, on a critical examination of all the available materials, the Court is satisfied that there appears to be a real question of fact to be determined. The latter … is more likely to be the case where the available materials include pleadings that raise factual disputes that can truly be described as significant, substantial, plausible or weighty.
·In conclusion, the inquiry required is whether there is a reasonable prospect of prosecuting the proceeding, not an enquiry directed to whether a certain and concluded determination can be made that the proceeding would necessarily fail. [27]
[27] See Riva NSW Ltd v Official Trustee in Bankruptcy [2017] FCA 188 at [45]-[50] (Perry J).
Secondly, pursuant to the provisions of section 102QAC, Ms Hurley seeks that the court make a harmful proceedings order, the effect of which would be to restrain Mr Ridge from bringing further proceedings against her or continuing the current proceedings. Clearly, such an order would be prospective in its effects.
Section 102QAC(1) reads as follows:
(1)A court exercising jurisdiction in proceedings under this Act may make an order (a harmful proceedings order) prohibiting a party (the first party) to the proceedings from instituting proceedings under this Act against another party to the proceedings without the leave of the court under section 102QAG, if the court is satisfied that there are reasonable grounds to believe that:
(a)the other party would suffer harm if the first party instituted further proceedings against the other party; or
(b)in the case of child-related proceedings (within the meaning of Part VII) — the child who is the subject of the proceedings would suffer harm if the first party instituted further proceedings against the other party.
The power is a discretionary one. Pursuant to subsection (4) a harmful proceeding order can be made on the court’s own initiative or an application (as here) by a party to the proceedings. It is a new provision, which has only been in effect since early May of 2024.
Accordingly, in my view, it is likely to be useful for the court to have regard to the contents of the relevant explanatory memorandum to ascertain the legislature’s intentions in respect of the extent of the application of the harmful proceedings provisions, particularly the nature of any constraints on the discretion and whether there are any specific preconditions which need to be satisfied before such an order may be made.
In respect of section 102QAC(1) the relevant memorandum indicates as follows:
The intention of this power is to allow the courts to proactively intervene, or intervene upon application by a party to the proceedings, before further applications are served on the other party, and therefore limit the detrimental effect, major mental distress or psychological harm that may result from further applications.[28]
[28] Explanatory Memorandum, Family Law Amendment Bill 2023, [322].
Section 102QAC(2) provides a non-exhaustive list of matters which may constitute harm for the purposes of the provision. In reads as follows:
(2)For the purposes of subsection (1), harm may include, but is not limited to, the following:
(a) psychological harm or oppression;
(b) major mental distress;
(c) a detrimental effect on the other party’s capacity to care for a child;
(d) financial harm.
As noted above, it is Ms Hurley’s evidence, supported by Ms M, that her diagnosed PTSD, constitutes both major mental distress and a form of psychological harm. She has deposed that this distress ameliorated when Mr Ridge was incarcerated but has re-established itself with his release and what she would characterise as his attempts to reassert himself as an actor in her life by not only re-commencing proceedings but also by contacting X through the unwanted lunch orders and through contact with her sports club.
As previously indicated, although not actually characterised as such, she asserts that this is tantamount to the stalking of her and X and thus constitutes family violence. In this context, it is implicit that the continuation of these proceedings are likely to have a detrimental effect on her capacity to care for X.
By necessary implication, this is a central aspect of the matter, given that Ms Hurley must be regarded as the child’s undisputed primary carer – a state of affairs which came about firstly because Mr Ridge was not able to interact with X in the absence of a viable handover location on the withdrawal of C Centre and secondly by reason of his incarceration for over two years.
No doubt Mr Ridge wishes to dispute these aspects of the case, particularly the evidence regarding Ms Hurley’s PTSD, which is not currently supported by a contemporary psychological assessment of her. However, in my view, to allow Mr Ridge to cross-examine Ms Hurley about these issues raises the very real risk of the application of the section – to prevent harm as statutorily defined to a person, particularly a parent – being rendered otiose or meaningless. As indicated above, the legislature’s intention was that the provision was to be utilised in a proactive fashion to prevent harm.
I would characterise Mr Ridge as a serial and serious litigator. The documents he is capable of producing are not capable of cursory dismissal by the courts in which he has filed them. They demand the court’s time and the formal response of those named in them. Clearly, Mr Ridge is an intelligent person, who is capable of searching out possible causes of action, under all manner of categories, against any individuals whom he perceives have wronged him.
Whether Mr Ridge derives gratification from his litigation and the attention which it brings him is not capable of my elucidation. On any view, the amount of litigation which he has personally brought, against all manner of individuals in all manner of jurisdictions, must be regarded as extraordinary. The record also indicates that he has been singularly unsuccessful.
Although it is not possible for me to definitively determine what is Mr Ridge’s personal motivation for being such a determined litigator, given this lack of success, it seems more likely than not that his motivation is not simply access to justice but is more malign in its nature. This is particularly so in respect of his actions against member of Ms Hurley’s family, against whom he clearly bears a significant level of grudge.
In this context, in my view, the manner in which the legislature has elected to frame section 102QAC(3) is illuminating. It reads as follows:
(3)In determining whether to make an order under subsection (1), the court may have regard to:
(a)the history of the proceedings under this Act between the first party and the other party; and
(b)whether the first party has frequently instituted or conducted proceedings against the other party in any Australian court or tribunal (including proceedings instituted (or attempted to be instituted) or conducted, and orders made, before the commencement of this section); and
(c)the cumulative effect, or any potential cumulative effect, of any harm resulting from the proceedings referred to in paragraphs (a) and (b).
Again, the explanatory memorandum indicates that this list is not exhaustive in its nature.
The proceedings between the parties conducted before Judge Heffernan took over four years. The only interruption to proceedings being Mr Ridge’s incarceration. As soon as he was released, as a litigant in person, he sought to reengage his appeal and contravention application.
In addition, the only conclusion which is open to me on the evidence before me is that Mr Ridge has frequently instituted litigation against any individual whom he perceives is aligned with Ms Hurley, such as members of her family, in other Australian courts. Mr Ridge may perceive that he is the person who has been wronged but no such finding has been made.
Given Ms Hurley’s previous diagnosis of PTSD, I accept that the further exposure of her to litigation emanating from Mr Ridge is likely to cause her major mental distress, as it has done in the past. It is also likely to impact on her capacity to care for X to the best of her ability because of the stress it will occasion her. If she continues to be legally represented, it will also cause her financial harm.
More significantly, I am concerned that the protracted and unremitting nature of Mr Ridge’s recourse to litigation, from which Mr Ridge is not likely to be easily deterred not withstanding his level of success or otherwise, his litigation is oppressive in nature and is analogous to coercive and controlling behaviour.
In short, as Ms Hurley puts it, Mr Ridge is intent by his recourse to such apparently minor things as sending a parcel of clothes or filling out a lunch order, to demonstrate to her that he is out there, watching her. In my view, this is, in itself, a form of psychological harm and oppression. In his judgment Judge Heffernan characterised it as a form of passive aggression. Certainly, I do not characterise it as child focussed or insightful.
CONCLUSIONS
As indicated above, these are child related proceedings, to which the provisions of Division 12A of the Act apply. The legislative intent of this Division is directed towards the minimisation of the potentially deleterious consequences of litigation for the children who are its focus.
In this case, X has been the subject of intensive litigation between 2016, when she was an infant, until July 2020. The only hiatus in the litigation was when Mr Ridge was incarcerated. The litigation was resumed by him on his release from prison.
Modest orders were made by Judge Heffernan, on 7 May 2020, for Mr Ridge to spend time with X, for six hours, on alternate Sundays. This modest time reflected Judge Heffernan’s finding that Mr Ridge had behaved in a coercive and controlling manner towards Ms Hurley. In addition, measures were put in place to manage the exchange of X been the parties, which soon broke down. It is now over four years since the child interacted directly with her father.
In these challenging circumstances, the court must attempt an analysis of what still more proceedings will achieve and equally significantly assess their cost to those who will be affected by them – primarily X herself and Ms Hurley. The two considerations are inter‑connected and must be balanced against each other.
As previously indicated, in all matters concerning parenting orders, the best interests of the child concerned are the paramount consideration for the court, not the perceived rights or entitlements of any of the parties concerned. As such the court retains the entitlement to manage the proceedings before it and prevent the instigation or maintenance of unmeritorious or harmful proceedings, I accept that these powers must be exercised cautiously and judiciously.
In this context, I have identified each of the criteria applicable under section 60CC of the Act. I am required to critically examine each of these factors against the material currently available to determine whether there is a real question to be determined by the court. It is a practical judgment.
X is now about nine years of age. She has not engaged directly with her father for a significant proportion of her life. In addition, prior to the final orders of Judge Heffernan there were many breaks in the relationship because of Mr Ridge’s unwillingness to attend at a police station to collect the child. On any view, even prior to Mr Ridge’s incarceration, the relationship between father and child was not characterised by any obvious secure foundations.
In addition, there were no hopeful signs that the parties’ disastrous co-parenting relationship was capable of any degree, whatsoever, of rectification. In this context, the court must examine each of the applicable section 60CC(2) factors.
Firstly, the court is required to consider protective concerns in respect of both any child concerned but also any person who has parental responsibility for the child. As a result of Judge Heffernan’s order of 7 May 2020, Ms Hurley holds sole parental responsibility for X. Ms Hurley’s evidence, both currently and as presented at trial, is that any exposure she has to Mr Ridge will cause her psychological harm.
She is supported in this contention by her treating psychologist Ms M, from whom she receives monthly treatment. Ms M, to Ms B, indicated that Ms Hurley was proactive in attending to her mental health. However, she remains vulnerable and has sought increased safety at her home. She continues to fear Mr Ridge.
In this context, Judge Heffernan went to some lengths to ensure that Ms Hurley was not directly exposed to Mr Ridge at any handover of X. The arrangement in this regard broke down soon after the relevant order was made. Accordingly, in any further hearing, a major issue will be on where and how X can be safely exchanged. Mr Ridge has proposed a nanny service but has not indicated how the expense of this will be met. He is unemployed.
In addition, the evidence indicates the withdrawal of CCS from handover arrangements. Mr Ridge has not indicated, in any cogent manner, what alternative service can be provided. In addition, his past history of suing organisations involved in handover may well deter others from being involved.
In all these circumstances, it seems to me Mr Ridge faces very great difficulties in persuading the court that X can be exchanged safely between the parties, given the previous history of the matter. Significant issues arise, in this case, as to what arrangements can promote X's safety and that of her primary carer, Ms Hurley, given the existence of family violence orders and previous findings of the court in regard to the commission of family violence by Mr Ridge against Ms Hurley.
The major thrust of Mr Ridge’s case is what he would characterise as the obvious benefits likely to be derived for X of having a meaningful level of relationship with him, as her father. However, the consideration as contained in section 60CC(2)(e) is subject to the proviso that it should be safe to promote such a relationship. Satisfaction of safety considerations is a precursor to any advancement of any relationship for a child. As indicated above, this also includes the safety of primary carers.
The potency of the family violence allegations in this case, when coupled with the extended break in any form of meaningful relationship between X and her father, in my view, provides ample reason for the court to question whether Mr Ridge has any reasonable prospects of successfully prosecuting his application to reinstate his relationship with X.
In addition, for obvious reasons, this consideration must be weighed up in the context of what are X’s views about the matter. If X is not of the view that the relationship is beneficial to her, it seems improbable that she can be compelled, by court order, to change her mind.
I appreciate that X must be regarded as being immature. She is not yet ten years of age. It is thus theoretically possible that she may change her mind about having some form of relationship with her father. I also appreciate that it is Mr Ridge’s view that X is being either directly or indirectly manipulated by her mother to have an adverse view of him.
It is also Mr Ridge’s submission that Ms B’s report must be considered to be flawed as she did not observe X interacting directly with her father. The implication of this submission being that, if she had done so, she would have observed some level of affection between the two.
This may conceivably be so. However, its prospects must be assessed against X’s unequivocal indication provided to Ms B that she did not want to see her father and his practice of providing her with unsolicited lunch orders may her feel uncomfortable.
In this context, the court must examine the likely prospects of Mr Ridge being successful in his attempt to persuade the court that Ms Hurley has successfully and manipulatively alienated X’s affections from him and that the court should thus be persuaded to embark on some, as yet, inchoate process of repairing the relationship between him and X.
I must also consider the potential emotional cost of such a process for X and its financial costs for Ms Hurley, if she elects to be legally represented. In my view, the psychological impact on X is likely to be high, given the level of dysfunction between her parents and the prospects of her changing her views about her father remote.
If the court does allow the proceedings to continue and does seek to canvas X’s view through some other process, such as through the appointment of an Independent Children’s Lawyer or another family report, in my view, there is a very real risk that this will be tantamount to systems abuse.
Given Mr Ridge’s propensity to engage the legal system to an extreme degree against those he perceives to be opposed to him, in my view, this is a very real danger in the present matter. I am concerned that Mr Ridge may wish to continue the proceedings against Ms Hurley, regardless of the possible adverse consequences for X because of his desire to exert control over her.
In all the circumstances of this case, it seems to be improbable that what Ms B has reported is not an accurate reflection of X’s views. In addition, if there is to be any therapeutic response, its success or otherwise is likely to depend on Ms Hurley’s support of it, which at this stage is unlikely to be forthcoming. In my view, it is difficult for the court to characterise such an attitude as unreasonable or lacking in child focus.
The necessary authorities require me to make a value judgment about the nature of the evidence which will be available if the case proceeds further. This cannot be an exact science. Rather it must be a matter of practical judgment based on the idiosyncratic circumstances of each case.
In my judgment given the period of time which has elapsed since X last interacted with her father; the current vehemence of her opposition to engaging with him; the absence of any mechanism to ensure that she can be safely exchanged between her parents; and the likely psychologically deleterious consequences for Ms Hurley – X’s undisputed primary carer – I do not consider that Mr Ridge has any reasonable prospects of successfully pursing his current application. As such, it is amenable to summary dismissal.
Mr Ridge is unlikely to accept this decision without demur. He is a highly litigious person, who is undeterred both by the imposition of costs orders against him or uncertain prospects of success. In addition, I am gravely concerned that he is inclined to engage legal processes as means of exerting elements of coercion and control over the individuals whom he elects to sue.
In these circumstances, it is necessary for me to consider what is the likely impact of any further proceedings, which Mr Ridge may wish to bring against Ms Hurley in this court, on both her and X. I consider that such proceedings are likely to cause harm to both Ms Hurley and X in the sense envisaged by section 102QAC(2).
Ms Hurley has been diagnosed as suffering from PTSD as a result of the negative aspects of her parenting relationship with Mr Ridge, which have previously found to be characterised by aspects of coercion and control. She would be subjected to psychological harm and oppression if there are more proceedings.
Oppress is an ordinary English word, which means to keep in a state of subservience or oppression. Given the single-minded and implacable nature which Mr Ridge has demonstrated in all the litigation which he has undertaken, even with the dismissal of the current application, Ms Hurley can only conceive that it will be followed by another and another application. This is oppressive and is likely to precipitate in her an adverse and harmful psychological reaction.
In addition, the evidence also indicates that X herself is a vulnerable child. She has been distressed by being the subject of the father’s unsolicited lunch orders. Ms Hurley reported to Ms B that X was expressing anxiety since her father had been released from prison and the lunch orders had started.
I also consider that the possibility of continual and almost certainly unending litigation from Mr Ridge will undermine Ms Hurley’s capacity to care for X. It will also expose Ms Hurley to financial harm, if she is compelled to oppose Mr Ridge’s application through the engagement of legal representation. Given his impecunious status and his preference for self-representation, cost implications Mr Ridge faces no disincentives in regards to commencing legal proceedings against Ms Hurley.
In these circumstances, it is my view, that the court, in the exercise of the various discretions conferred on it, both under Part XIB to control unmeritorious and harmful proceedings and pursuant to Division 12A of Part VII to conduct child related proceedings, the court should dismiss the current application and make a harmful proceedings order under section 102QAC(1) restraining the father from continuing with his current application or instituting further proceedings.
This order engages section 102QAE of the Act. Mr Ridge may seek the court’s leave, at some point in the future, to institute further proceedings.
Given the summary dismissal of Mr Ridge’s application, it follows that the orders sought by Ms Hurley, in respect of X, should be made, to regulate her care, which also reflect the earlier injunctive orders regarding lunch orders and the like.
For all these reasons the orders of the court will be as set out at the commencement of these reasons for judgment.
I certify that the preceding one hundred and eighty-eight (188) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Brown. Associate:
Dated: 30 August 2024
0
9
3