Safford & Kelso
[2021] FedCFamC1F 165
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Safford & Kelso [2021] FedCFamC1F 165
File number(s): BRC 1970 of 2011 Judgment of: JOHNS J Date of judgment: 27 October 2021 Catchwords: FAMILY LAW – CHILDREN – family violence – undefended hearing – where the applicant father failed to engage in the final hearing – where final orders have been in effect since 2014 – where the father has not spent time with the child since 2013 – father’s application dismissed
FAMILY LAW – VEXATIOUS PROCEEDINGS – consideration of s 102QB – family violence – proceedings used as form of harassment – where the applicant father has repeatedly engaged and discontinued proceedings – where the respondent mother perceives the proceedings to be a form of harassment and coercion
Legislation: Family Law Act 1975 (Cth) ss 60B(1), 60B(2), 60CA, 60CC(2) and (3), 61DA, 64B(2)(g), 65C, 65DAA, 69ZW, 102NA, 102Q, 102QB, 102QE
Evidence Act 1995 (Cth) s 140
Cases cited: Cannon & Acres [2014] FamCA 104
McCall & Clark [2009] FamCAFC 92; (2009) FLC 93-405
Mazorski v Albright [2007] FamCA 520; (2007) 37 Fam LR 518
Oberlin & Infield (2021) FLC 94-017
Official Trustee in Bankruptcy v Gargan (No.2) [2009] FCA 398
Pencious & Searle (2017) FLC 93-805
State Bank of New South Wales v Stenhouse Limited and Ors (1997) Aust Torts Reports 81-423
Division: Division 1 First Instance Number of paragraphs: 127 Date of last submission/s: 11 June 2021 Date of hearing: 11 June 2021 Place: Melbourne Applicant: No Appearance Solicitor for the Respondent: Victoria Legal Aid Counsel for the Respondent: Ms Weiner Solicitor for the Independent Children’s Lawyer: KS Family Lawyers ORDERS
BRC 1970 of 2011 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR SAFFORD
Applicant
AND: MS KELSO
First Respondent
KS FAMILY LAWYERS
Independent Children’s Lawyer
ORDER MADE BY:
JOHNS J
DATE OF ORDER:
27 OCTOBER 2021
THE COURT ORDERS THAT:
1.That the final orders made 9 October 2014 continue in full force and effect.
2.That pursuant to s. 102QB(2) of the Family Law Act 1975 (Cth) ("the Act") the applicant, MR SAFFORD born … 1973 be prohibited from instituting proceedings under the Act without first having obtained leave by the Court to do so pursuant to s. 102QE of the Act.
3.That the appointment of the Independent Children's Lawyer be discharged at the expiration of 30 days from the date of these orders.
4.That all extant applications be otherwise 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).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish 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 the pseudonyms Kelso & Safford has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
INTRODUCTION
Final parenting orders were made in the then Federal Circuit Court on 9 October 2014 in relation to parenting arrangements for the parties’ only child, X, aged 11. Those orders provide that the mother, Ms Kelso, have sole parental responsibility and that X live with her. No orders were made for the father, Mr Safford, to spend time or communicate with the child. Injunctions were made restraining the father from communicating with the mother or the child, entering the mother’s residence or place of employment and approaching or remaining within two kilometres of the mother or the child. Orders were also made restraining the father from communicating with the ICL.
At the time the Final Orders were made, the father was incarcerated for breaches of a family violence order protecting the mother. He was released from prison in 2016.
On 19 December 2017 the father commenced proceedings in the Brisbane Registry of the Federal Circuit Court of Australia by Initiating Application. In that application the father sought parenting orders with respect to X’s care.
On 2 October 2020 the father filed an Amended Initiating Application in which he sought final orders:-
·That the mother notify the father and seek his input prior to making any major long-term decision regarding the care, welfare and development of the child; and
·That the parties attend upon a family therapist for family therapy to support the reintroduction of the father into the child’s life.
The mother opposes the orders sought by the father. She views the father’s application as a form of harassment and coercive control. She also submits that the application, which is the sixth filed by him since the making of the Final Orders, is an abuse of process. The mother seeks an order pursuant to s 102QB of the Family Law Act 1975 (Cth) (“The Act”) that the father be declared a vexatious litigant and prohibited from instituting further proceedings. The Independent Children’s Lawyer supports the mother’s position.
These are my reasons for judgment with respect to those applications.
THE PARTIES
The applicant father, Mr Safford, is aged 48. He lives with his partner in Queensland and is employed in hospitality.
The respondent mother, Ms Kelso, is aged 44. She lives with the child and her other children in Victoria. The mother is a homemaker.
The parties commenced cohabitation in January 2008 when the mother moved into the father’s unit with her daughter from a previous relationship, W, then aged 5.
The mother now has four children; W, X and two children from subsequent relationships.
The mother and father separated on a final basis on 13 May 2012.
BACKGROUND
Following the parties’ separation in 2012, proceedings commenced in the Federal Circuit Court in Brisbane.
Whilst those proceedings were still on foot, in 2014, the father was incarcerated for breaching a domestic violence order made for the protection of the mother. He was incarcerated for a period of approximately 21 months and was released in 2016.
Following the father’s incarceration, final parenting orders were made by Judge Turner in the Federal Circuit Court on 9 October 2014. Those orders provided as follows:-
(1)That all previous parenting plans and orders be discharged.
(2)That the Mother have sole parental responsibility for the child X born in 2010.
(3)That the child live with the Mother.
(4)That the child spend no time with the Father.
(5)That pursuant to s68 Family Law Act 1975 the Father be injuncted and restrained from:
(a)communicating with the Mother or the child by any correspondence including but not limited to letters, email, text or telephone;
(b)entering or remaining in the residence of the Mother or her place of employment;
(c)approaching or remaining within two (2) kilometres of the Mother or the child;
(d)approaching or communicating with the child’s school.
(6)That unless the Mother becomes physically or mentally incapable of parenting the children, the Father is restrained and an injunction issue restraining him from commencing proceedings seeking parenting orders at any time before his release from imprisonment without first obtaining leave of the Court.
(7)That any application by the Father for leave to commence proceedings seeking parenting orders must be served on the Mother but she is not required to participate in the hearing of the application for leave.
(8)That the Independent Children’s Lawyer provide to the Department of Communities, Child Safety and Disability Services a copy of these Final Orders as well as Reasons for Judgment.
(9)That the Independent Children’s Lawyer be discharged and pursuant to s68 Family Law Act 1975 the Father be injuncted and restrained from communicating with the Independent Children’s Lawyer or her staff by any means.
Upon his release from prison, the father issued a further Initiating Application in July 2016. The father filed a Notice of Discontinuance in respect of that application on 24 November 2016. However, at a mention hearing on 29 November 2016, the father informed the Court that he no longer wished to rely upon that Notice of Discontinuance. Accordingly, the proceedings continued.
The father again changed his position with respect to his application and on 7 August 2017 orders were made in the Federal Circuit Court by Judge Jones as follows:-
(1)Leave be granted for the Applicant to discontinue the proceedings.
(2)All extant applications be otherwise dismissed and removed from the list of pending cases.
Some three months later, the father filed another Initiating Application on 19 December 2017 seeking parenting orders. That application was transferred to this Court pursuant to orders made by Judge Spelleken on 29 November 2019.
The matter was listed for a first day hearing before me on 6 November 2020. That day, I made orders as follows:-
(1)Pursuant to Section 67ZW, the Department of Health and Human Services be requested to provide a report including but not limited to:
(a)any notifications to DHHS of suspected abuse of the child X born … 2010 (“the child”) or of suspected family violence affecting the child including but not limited to any intake reports;
(b)any assessments of DHHS of investigations into notifications of that kind or the findings or outcomes of these investigations including but not limited to copies of investigation and assessment outcomes, any grounds of substantiations, case plans and case closure summaries;
(c)any reports commissioned by DHHS in the course of investigating a notification, including but not limited to any reports prepared for any proceedings in the Children’s Court; and
(d)in the event DHHS have an ongoing investigation in relation to the child, any recommendations for the future arrangements of them taking into account the orders sought by the parties in these proceedings.
(2)Within 7 days, the mother and father each provide to the Independent Children’s Lawyer (“ICL”) the name and contact details of any mental health professional they have attended upon since 09/10/2014.
(3)The father undertake a psychological assessment incorporating a family violence risk assessment with such psychologist as may be nominated by the ICL, with the costs associated with the assessment and report to be paid by the father.
(4)The mother undertake a mental health assessment with such mental health professional as may be nominated by the ICL, with the assessment to include consideration of the impact (if any) upon the mother’s functioning in the event of a reintroduction of the child to the father, AND IT IS REQUESTED that Victoria Legal Aid (“VLA”) fund the costs associated with the assessment and report.
(5)The ICL have leave to provide to the professionals appointed pursuant to these Orders and to VLA Family Dispute Resolution Service (“FDRS”) (in the event of any application to FDRS), copies of the following documents:
(a)The Family Report prepared by Ms B dated 06/12/2012;
(b)The Family Report prepared by Ms D dated 07/08/2013;
(c)Affidavit of Mr C filed 31/03/2014 (Previous psychiatric assessments);
(d)The Final Orders dated 9/10/2014;
(e)Reasons for Judgement dated 25/07/2019;
(f)Family Consultant Memorandum (Section 11F Report) dated 04/09/2019;
(g)A copy of these Orders.
(6)Within 7 days of being notified of the nominated professionals appointed pursuant to these Orders, the solicitor for each parent provide to the each of the nominated professionals, copies of the following documents filed and relied upon by their client in these proceedings:
(a)The current Application/Response, setting out with precision the Final Orders sought;
(b)Any affidavit material filed in support of the Application/Response provide.
(7)That as soon as practicable, the father make appointment and attend for hair collection at an E Testing Service (ETS) or nominee for hair drug and alcohol testing purposes. Collection is to be conducted by a qualified and certified collector. Chain-of- Custody procedure is to be applied to the sample. Testing is to be conducted at an approved laboratory, accredited to conduct hair drug testing to the recognised International Standard ISO/IEC 17025:2005 by the relevant national accreditation body for that laboratory. Either head or body hair may be collected for testing. To give effect to this order:
(a)The father is required to maintain his head hair at a length of not less than four (4) centimetres;
(b)Neither head hair nor body hair is to be cut, bleached or dyed between the date of this order and the time of collection of hair;
(c)Each party or their legal representatives are at liberty to provide ETS with a copy of these orders;
(d)The father is to provide the collector with photographic identification to be recorded before each hair collection and authority, with this order also hereby authorising ETS or nominee to provide the results of the test to each parent (or their legal representative) and the ICL upon receipt of such test results;
(e)The hair drug and alcohol test may screen for alcohol EtG and/or drugs of abuse including amphetamine-type substances and metabolites, cannabis and metabolites, cocaine and metabolites, opioids and metabolites;
(f)ETS is required to utilise the testing services of an appropriate laboratory accredited to conduct hair drug testing to the recognised International Standard ISO/IEC 17025:2005 by the relevant National Accreditation body; ETS’s selection is to be based on the type of test required, the specific drug or drugs to be tested, the laboratory’s compliance level with international Society of Hair Testing (SoHT) guidelines, cost, and time required for results to be made available;
(g)The cost of the drug and alcohol testing is to be met by the father;
(h)The father shall do all things necessary to ensure a copy of the results are provided to the solicitor for the mother and the ICL.
(8)The matter be adjourned for further mention before Justice Johns at 9:30am 25 February 2020.
…
Trial directions were made by me on 25 February 2021. Those orders required that the father file and serve his trial affidavits by 25 March 2021. The father was to file his case outline document by 4 June 2021.
The father filed an affidavit on 26 March 2021 pursuant to my trial directions. That affidavit contains nine paragraphs in which the father deposes as follows:-
(1)I Mr Safford am the Father of X born …2010.
(2)I had a relationship with Ms Kelso, X’s mother of approximately 4.5 years.
(3)It was a toxic relationship with reciprocal family violence.
(4)In … 2014 I spent 2 years in prison for a number of breaches of a [sic] AVO.
(5)I was released in … 2016. I spent 3 months living at my Mums [sic] home In Brisbane and then moved to a 2 bedroom unit in Region F.
(6)I have worked in several jobs in both construction and hospitality. I am currently employed by a sports club and have been in this role for 2 years.
(7)Late 2017 I met Ms G. We moved in together in March 2018. Ms G has recently relocated to Melbourne on a temporary basis. Ms G has a younger sister with an intellectual handicap. Her elderly parents are unwell and Ms G is helping to provide care for her sister.
(8)I know this is suppose [sic] to be an Affidavit of Evidence in Chief. For nearly 5 years I have been fighting to have a relationship with my daughter to no avail. I have spent countless hours worrying about X and preparing Affidavits to support I was always a good Father and this is all I have left to give.
(9)It is clear from the Children’s services report X has had a very traumatic upbringing with her Mother. Had an earlier Court acted in X’s best interest and allowed me to have a relationship with X things may have been different.
No other evidence was filed on behalf of the father.
On 30 April 2021 the father’s solicitor filed a Notice of Ceasing to Act. As a result of the filing of that notice, I caused the matter to be listed for mention given that there is a final Intervention Order between the parties made in the Magistrates’ Court of Victoria in Suburb H on 23 March 2018 (Exhibit R-4).
The matter was listed for mention before me on 19 May 2021. That day the father made an oral application seeking an adjournment of the matter for a period of nine to 12 months. That application was refused. That day I made an order confirming that the requirements of s 102NA(2) of the Act will apply to any cross-examination occurring in the proceedings. Otherwise the matter remained listed for final hearing on 11 June 2021.
Should the mother have leave to proceed on an undefended basis?
In circumstances where the father did not appear at the final hearing on 11 June 2021, the mother seeks leave to proceed with her application on an undefended basis.
As a result of COVID-19 restrictions, the hearing was conducted via Microsoft Teams. An email was forwarded by the Court to each of the parties on 2 June 2021 notifying them that the trial will proceed via Microsoft Teams and confirming that invitations and instructions regarding connecting to the Teams hearing would be forwarded the following week. That confirmation email with instructions was forwarded to each of the parties by email dated 9 June 2021.
Upon the commencement of the hearing before me on 11 June 2021 attempts were made to telephone the father on the mobile telephone number provided by him to the Court. At approximately 10.10 a.m. the father’s phone was called from the Court. Upon the telephone call being answered, my Legal Associate identified herself and confirmed that she was calling from the Family Court of Australia in Melbourne. The phone call was terminated by the person answering the call, presumably the father, at that point.
No attempt was made by the father to communicate with the Court either by telephone or email on 11 June 2021. Further he did not join the Microsoft Teams meeting to participate in the hearing.
In addition to his failure to attend at the final hearing, it is submitted on behalf of the mother that the father has failed to comply with orders of the Court. In particular, it was submitted that the father has failed to comply with the orders made by me on 6 November 2020 requiring him to:-
·Undertake psychological assessment incorporating family violence risk assessment pursuant to order 3;
·Undertake hair follicle testing for testing of drug and alcohol pursuant to order 7.
The father was represented at the time the orders were made on 6 November 2020. Accordingly, I am satisfied that he has had notice of his obligations under those orders.
Again, at the time the matter was fixed for hearing on 25 February 2021, the father was represented by his solicitor. The Notice of Ceasing to Act filed by the father’s former solicitor on 30 April 2021 confirms at paragraph 4 of that document that the next time the case is listed before the Court is 11 June 2021 at 10.00am for a defended hearing.
The father represented himself at the mention hearing before me on 19 May 2021. That day the father made an oral application for an adjournment of the final hearing listed on 11 June 2021. That application was refused. I delivered ex-tempore reasons for judgment and made an order pursuant to s 102NA of the Act. Paragraph 31 of that ex-tempore judgment provides as follows:
Having regard to the above matters, I am satisfied that the father has had notice of the final hearing listed 11 June 2021. He was represented by his lawyer at the time the matter was fixed for trial and represented himself at the hearing before me where his adjournment application was refused and where I confirmed that the hearing would proceed on its listed date.
The father has been on notice as to the mother’s position since the filing of her Response to Final Orders on 21 October 2020. In that response the mother sought orders that the previously made final orders remain in full force and effect. Further, she sought orders restraining the father from making any application under Part VII of the Act in relation to the child without first seeking leave of the Court.
In her Further Amended Response to Initiating Application filed 21 May 2021, the mother sought orders to restrain the father either pursuant to s 102QB of the Act or alternatively s 64B(2)(g) of the Act. Otherwise the orders sought by her were identical to those sought in her original response.
Having regard to the above matters, I am satisfied that the father has been afforded procedural fairness. He has been on notice as to the hearing date since it was listed on 25 February 2021. That listing was confirmed most recently at the mention hearing conducted before me on 19 May 2021 when the father represented himself. I am also satisfied that the father has had notice of the orders sought by the mother.
Further, I am satisfied that the father has failed to comply with the orders dated 6 November 2020 regarding his attendance for psychological assessment and drug and alcohol testing.
In light of those matters, I am satisfied that the mother should have leave to proceed with her application for final orders on an undefended basis.
MATERIAL RELIED UPON
The mother relies upon the following material :-
·Case outline dated 11 June 2021;
·Further Amended Response filed 21 May 2021;
·Affidavit of the mother filed 22 April 2021; and
·Affidavit of Mr J filed 5 May 2021.
The ICL relies on the following material:-
·Case summary filed 7 June 2021;
·Section 11F memorandum dated 5 November 2019;
·Affidavit of Mr J filed 5 May 2021;
·Section 67ZW report dated 4 December 2020;
·Section 67ZW response addendum dated 24 February 2021.
ORDERS SOUGHT
The mother seeks orders in the following terms:-
(1)That the Mother be granted leave to proceed on an undefended basis.
(2)That the Initiating Application filed by the Applicant on 17 December 2017 and any extant application be dismissed and removed from the court listings.
(3)That the final orders made by her Honour Judge Turner on 9 October 2014 remain in full force and effect.
(5)Pursuant to section 102QB of the Family Law Act 1975 (Cth), that the Applicant Father be made a vexatious litigant and is prohibited from initiating further proceedings in relation to the child, X born in 2010.
(6)In the alternative to order 5, pursuant to section 64B(2)(g) of the Family Law Act 1975 (Cth) (‘the Act’) the Father be restrained from making any application seeking and obtaining leave of a judge of the Federal Circuit Court of Australia and for that purpose:
(a)The Father must file an application setting out the specific orders sought and an affidavit setting out the evidence and reasons for seeking these orders;
(b)Unless otherwise ordered such application is not to be served on the Mother or any person;
(c)If possible, any such application for leave be listed before the trial judge listed in this application;
(d)That the application not be made within 3 years of the making of these orders.
(7)Such further and other Orders as this Court sees fit.
The ICL supports orders in the terms of the mother’s application.
LEGAL PRINCIPLES
Section 60B(1) provides that the objects of the Act are to ensure the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
Section 60B(2) outlines the principles underlying those objectives, except in cases where it is, or would be, contrary to the child’s best interests:
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture.
The parties seek parenting orders as defined by section 64B of the Act. That is, they seek orders with respect to:-
(a)With whom the child is to live;
(b)With whom the child is to spend time; and
(c)The allocation of parental responsibility for the child.
Both parties have standing to apply for these orders pursuant to section 65C of the Act, which confirms that either or both of the child’s parents may apply for a parenting order.
In determining what parenting orders should be made, the court must regard the best interests of the child as the paramount consideration, in accordance with section 60CA of the Act.
Sections 60CC(2) and (3) of the Act set out the primary and additional considerations the Court must consider in determining what is in the child’s best interest in any particular case. This is qualified by section 60CC(2)(b) which provides that the Court must afford greater weight to the need to protect the child from physical or psychological harm or exposure to abuse, neglect or family violence. Aside from this, there is no requirement that the primary and additional considerations be considered in a particular order or for any of such to be afforded greater weight.
The Act imposes a presumption that it is in the best interests of the child for the parents to have equal shared parental responsibility (section 61DA). The presumption relates to the allocation of parental responsibility, not the time the child spends with each parent. For the reasons set out below, I am not satisfied that it is in the child’s best interests for the mother and the father to have shared parental responsibility. I will make orders that the mother continue to have sole parental responsibility for the child.
As a result of my finding that the mother should retain sole parental responsibility for the child, the Court is not required to consider whether the child spending equal time or substantial and significant time with each parent would be in their best interests and whether it is reasonably practicable to do so (s 65DAA of the Act).
The evidence of the mother as contained in her trial affidavit filed 22 April 2021 is unchallenged. Similarly, there is no challenge to the evidence of Mr J, clinical psychologist whose assessment of the mother is annexed to his affidavit filed 5 May 2021.
Findings are made on the balance of probabilities having regard to the evidence before the Court (Evidence Act 1995 (Cth) s 140). In what follows, statements of fact constitute findings of fact.
The issues can most conveniently be discussed within the s 60CC considerations. I will first consider the primary considerations under s 60CC(2) of the Act.
Section 60CC Consideration
Primary Considerations: Section 60CC(2)
(a)the benefit to the child of having a meaningful relationship with both of the child’s parents;
Ordinarily it is in a child's best interests to have a meaningful relationship with both parents. The question of what is a meaningful relationship was considered by Brown J in Mazorski v Albright [2007] FamCA 520; (2007) 37 Fam LR 518. At paragraph 26 of that judgment her Honour concluded that a meaningful involvement is one which is important, significant and valuable to the child.
In McCall & Clark [2009] FamCAFC 92; (2009) FLC 93-405 the Full Court considered the interpretation of s 60CC(2)(a) and concluded that:-
119. … the preferred interpretation of benefit to a child of a meaningful relationship in s 60CC(2)(a) is "the prospective approach" although, depending upon factual circumstances, the present relationship approach may also be relevant. We note however that s 60CC(3)(b) requires a court to explore existing relationships between a child and his or her parents and other persons, including grandparents ...
…
122. In reaching these conclusions, we also consider the legislation requires a court to focus on the benefit to the child of a meaningful or significant relationship. No doubt in the majority of cases there will be a positive benefit to a child of having a significant relationship with both parents, but there will also be some cases where there will be no positive benefit to be derived by a child by a court attempting to craft orders to foster a relationship with one parent if this would not be in the child's best interests.
(Original emphasis)
The child has spent no time with the father since around December 2013. At that time she was aged only three-and-a-half years.
Although the father is the applicant in these proceedings, he has seemingly disengaged from them and elected not to participate in the final hearing. Further, he has not complied with orders requiring him to attend for psychiatric assessment and for drug testing.
Having regard to those circumstances, it would seem that there is little utility in the court attempting to frame orders for him to be reintroduced to the child. Accordingly, I am satisfied that there can be little benefit to the child in attempting to craft orders to facilitate the father’s relationship with her.
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence;
In her trial affidavit, the mother deposes that there were multiple occasions of ongoing family violence throughout her relationship with the father. Further, the mother deposes that during the relationship the father consumed alcohol to excess and took illicit substances including speed, ecstasy and cannabis. Further, she deposes that the father abused Valium. It is her evidence that the father’s violent behaviour escalated when he was affected by drugs and alcohol.
The mother also deposes that the father stalked her, tracking her whereabouts, questioning her movements and questioning with whom she was communicating. She deposes that the applicant hit, kicked, punched, choked and threatened to kill her. She also deposes that the father attempted to strangle her on a number of occasions, including in front of her daughter W. She also deposes that the father attempted to drown her in a bath, that she was locked in rooms and that her telephone, wallet and keys were removed by him.
The mother deposes that at the commencement of the parties’ relationship she was working as an escort. During the relationship she deposes that the father verbally abused her calling her names such as ‘mongrel slut’, ‘useless slut’, and further that the father would tell members of her family and friends that she had worked as a prostitute.
The mother first obtained an apprehended intervention order against the father in 2009.
As a result of his breach of a family violence order, the father was incarcerated for a period of almost two years between 2014 and 2016.
On 22 March 2018 a final family violence intervention order was made in the Magistrates’ Court in Suburb H against the father. That order names the mother, the child and her daughter W as protected persons. That order continues.
It is submitted on behalf of the mother that given the history of family violence, it is necessary to make orders that ensure the protection of the child from harm. That submission is supported by the ICL.
Having regard to the mother’s unchallenged evidence regarding the father’s violent conduct, I am satisfied as to the necessity for orders to protect the child from physical and psychological harm arising from being subjected or exposed to family violence when in the father’s care.
I must now consider the additional considerations.
Additional Considerations: Section 60CC(3)
Any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;
The child was interviewed for the purposes of a Child Inclusive Conference Memorandum on 4 September 2019. At the time of interview X was aged nine years. On page 2 of that memorandum, Family Consultant K reports as to X’s views of the father. Family Consultant K reports as follows:-
…When asked about what she understood about why she was attending at the Registry today, X shrugged her shoulders and said quietly, she did not know why. She then said, “So [the father] doesn’t get me”, recounting a story of her being taken by the Federal Police when she was aged two-and-a-half years and taken to [the father]. X said she remembered screaming in the car, which would have been traumatic for her.
X’s narrative about her father was initially that he was dead and had died “by the cancer”. …Later in the interview the writer asked X who she thought [the father] was, given she said her father was dead. X said “I know [the father] is not dead. I just don’t want him around”. The writer asked X if she had any memories of [the father]. X said he put her fluffy dog on the fridge and she has not got him back which is why she has “bunny”, her new soft toy. …X said “I am happy with my family and don’t want to know [the father].
At page 3 of the memorandum Family Consultant K reported as follows:-
X indicated in this interview she does not want to know [the father] or see him. There do not appear to be any benefits at this stage of her development, to introduce X to [the father] in the hope of establishing a relationship.
X may, when she is older, make other choices regarding her biological father …but at this time she does not want contact with [the father], a person she barely knows or remembers. At this time X’s life is embedded with her mother and family and to pursue contact or time spent may be re-traumatising for X.
There was no challenge to that evidence. Accordingly, I accept the evidence of Family Consultant K as to X’s views at the time of that assessment.
During her submissions, the ICL confirmed that she had communicated with X by telephone on 29 October 2020. During that conversation, X confirmed the views she had earlier expressed to Family Consultant K. She confirmed that she does not wish to see or spend time with the father and further that she is happy living with her mother and sister.
The nature of the relationship of the child with:
(i)each of the child’s parents; and
(ii)other persons (including any grandparent or other relative of the child);
The mother has been X’s primary care-giver since 2013. She has attended to all of her physical, emotional, psychological and intellectual needs since that time.
The father has spent no time with the child since late 2013.
The Family Consultant observed in September 2019 that the child’s life is embedded with the mother and her family. I accept that evidence.
The extent to which each of the child’s parent has taken, or failed to take, the opportunity:
(i)to participate in making decisions about major long-term issues in relation to the child; and
(ii)to spend time with the child; and
(iii)to communicate with the child;
and
The extent to which each of the child’s parents has fulfilled or failed to fulfil the parent’s obligations to maintain the child;
The father has spent no time with the child since late 2013. Although he previously instituted proceedings in 2016 to reintroduce time, he did not then pursue that application. Similarly, he has not appeared at the final hearing with respect to his current application.
Since late 2013, the mother has been solely responsible for making all decisions regarding the child’s day-to-day and long-term care, welfare and development.
The father has provided no financial support for the child. The mother deposes in her trial affidavit that the father does not make any financial contribution towards X’s support. I accept that unchallenged evidence.
The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i)either of his or her parents; or
(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
The orders sought by the mother will ensure a continuation of the existing arrangements that have been in place for X since late 2013.
The s 69ZW report dated 4 December 2020 confirms at page 3 that it is the assessment of the Department that X is safe in the mother’s care having regard to the fact that:-
·She is enrolled in school and is attending regularly;
·There is a strong family network which has established ongoing safety for X and her siblings;
·There are no concerns as to the mother’s parenting capacity;
·The mother is engaged with appropriate support services; and
·The mother having been subject to a community temporary treatment order has been discharged from that order and is continuing to engage with mental health supports in a voluntary capacity.
In its addendum report dated 24 February 2021 the Department confirmed that no risks to X were identified in the mother’s care. Further, that report confirms that the mother was continuing to be supported by her family support worker.
Having regard to the assessment of the Department coupled with the unchallenged evidence of the mother, I am satisfied that the current arrangements for X are in her best interests.
The practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
X currently spends no time with the father and that arrangement will continue upon finalisation of these proceedings.
The capacity of:
(i)each of the child’s parents; and
(ii)any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
and
The attitude to the child, and the responsibilities of parenthood, demonstrated by each of the child’s parents;
The mother has provided for X’s physical, emotional and intellectual needs since December 2013.
The mother was assessed by Mr J, clinical psychologist, for the purposes of these proceedings and his report dated 3 February 2021 is annexed to his affidavit filed 5 May 2021. At page 19 of that report, Mr J acknowledges that the mother maintains stable accommodation and described appropriate life skills in a parenting role. He observed that there was no evidence of a history of neglect in the mother’s family of origin. He also confirmed that the discord between the mother and the father remains unresolved and that her mental health remains delicate.
Mr J noted that there was an absence of evidence to support the father’s contention that the mother would place X at risk. He noted that the mother appears to have facilitated relationships between her other children and their fathers. In conclusion, Mr J made recommendations that the mother would benefit from therapy to explore the impact of family violence and address PTSD symptoms exhibited by her and to be linked with parenting support services to assist with issues as they arise.
The mother deposes at paragraph 57 of her trial affidavit that she continues to engage with services to which she was referred by the then DHHS. She deposes that she has weekly appointments with a social worker who has supported her through these proceedings and that she has monthly check-ups with her mental health case worker. The reports from the Department to which I have referred earlier in the judgment confirm that the mother is engaged with her support worker.
I am satisfied having regard to the unchallenged evidence of the mother and Mr J, coupled with the information contained in the reports from the Department that the mother has and will continue to appropriately care for the child. She has demonstrated a strong commitment to her role as X’s primary care-giver and when faced with difficulties, has sought appropriate supports to assist in her parenting of X.
It is submitted on behalf of the mother that the father has demonstrated a poor attitude towards his responsibilities as a parent. Further it was submitted that the father seeks to attribute blame upon the mother for the loss of his relationship with X. In support of that submission the mother relied upon the father’s affidavit filed 17 December 2017 (Exhibit R1) in which he deposed at paragraph 41 as follows:-
I believe that the Mother has Malicious Mother’s Syndrome and this is a classic case of Paternal Alienation.
Similarly in his affidavit filed 26 November 2019 (Exhibit R-2), the father seeks to attribute responsibility for him not having a relationship with X to the mother. He alleges at paragraph 15 of that affidavit that the matter is “complicated” due to the “reciprocal family violence”. That allegation was repeated by the father in his recently filed trial affidavit.
It is submitted by the mother and I accept that nowhere in the father’s filed affidavit material is there any acknowledgement by him or acceptance of responsibility for his actions causing the breakdown of his relationship with the child.
The evidence before the court, which I accept, is that the mother has been subjected to verbal and physical assaults by the father and that as a result, the father was convicted of criminal offences and incarcerated for a period of approximately two years. That the father does not have a relationship with X is as a result of his own conduct towards the mother and child. Further, the evidence submitted by the father in these proceedings indicates that little has changed in the father’s attitudes towards the mother or his responsibilities as a parent. In his Trial Affidavit the father continues to depose that he was in a “toxic relationship” with the mother in which there was “reciprocal family violence”.
The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;
and
If the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
These considerations are not relevant to the matter.
Any family violence involving the child or a member of the child’s family;
If a family violence order applies, or has applied, to the child or a member of the child’s family, any relevant inferences that can be drawn from the order, taking into account the following:
(i)the nature of the order;
(ii)the circumstances in which the order was made;
(iii)any evidence admitted in proceedings for the order;
(iv)any findings made by the court in, or in proceedings for, the order;
(v)any other relevant matter;
As noted earlier, the mother and the child are protected persons under a final family violence order made in the Magistrates’ Court in Suburb H in 2018.
The mother deposes to a long history of being subjected to family violence in her relationship with the father.
In the s 69ZW report dated 4 December 2020, the DHHS workers report as to the child protection history obtained by the Department. At page 2 of that report it is confirmed that the order made in the Magistrates’ Court is a ‘full exclusion intervention order…with no expiry date’. As to the basis for that order, the report indicates:-
The narrative of the intervention order stated that there had been three previous intervention orders against the respondent ‘due to his extremely violent behaviour and threats to kill the AFM and her children’. It further stated that ‘in 2014 the respondent kidnapped the mother and X, who were later recovered by Federal Police. The respondent was imprisoned for three years for this offence’. The narrative further explained that ‘since the respondent’s release in 2015, he has continued to make attempts to locate the mother and X and the mother continues to live in fear that he will find her’.
That report is consistent with the mother’s account of the family violence in her relationship with the father. I accept that evidence.
Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
The child has been the subject of Family Court proceedings since the parties’ separation in 2012. Whilst the proceedings were finalised following the father’s incarceration in 2014, since 2016 there have been multiple applications filed by the father in the then Federal Circuit Court and this Court seeking a re-opening of the parenting proceedings. The evidence before the Court indicates that the mother has been adversely affected by the continuation of the proceedings. It was submitted on behalf of the mother that the continuation of the proceedings was a form of ongoing harassment and coercive control of the mother by the father. Having regard to the evidence of Mr J as to the symptoms exhibited by the mother, including symptoms of post-traumatic stress disorder, I accept that submission.
As the child’s primary care-giver, the impact of these proceedings on the mother has likely also had a significant and adverse impact upon the child.
Accordingly, I am satisfied that X’s best interests will be served by final orders that will ensure certainty and stability in relation to future parenting arrangements.
Any other fact or circumstance that the court thinks is relevant.
There are no other facts or circumstances relevant to this matter.
CONCLUSION
The mother seeks orders that the existing final parenting orders dated 9 October 2014 remain in full force and effect. Those orders provide that she have sole parental responsibility for X and that X live with her. Those orders also provide restraints in relation to the father’s behaviour towards the mother and X.
I am satisfied that it is in X’s best interests that those orders continue. The mother has been X’s primary care-giver since the parties’ separation. The evidence before the Court indicates that X is being well cared for and is making good progress.
There is a long history of violent and anti-social conduct by the father towards the mother. There is also evidence before the Court that X and her older sibling were exposed to that conduct.
Having regard to the mother’s unchallenged evidence in relation to these matters, I am satisfied that the existing final orders with respect to parenting of the child should continue. Those orders are appropriate and in X’s best interests. Those orders will ensure that X continues to live in a stable and secure environment with the mother and her siblings.
It was submitted on behalf of the mother that the time has come for an order to be made pursuant to s 102QB of the Act, having regard to the numerous applications filed by the father which she submits have been an abuse of the court’s processes and designed to harass or annoy her. In the alternative the mother seeks orders pursuant to s 64B(2)(g) of the Act restraining the father bringing any further parenting application for a period of 3 years and requiring him to file material seeking leave to bring such application. That application is supported by the ICL.
The Full Court considered the Court’s powers to make orders pursuant to s 64B(2)(g) as sought by the mother in the case of Oberlin & Infield (2021) FLC 94-017. The Court there was asked to consider whether s 64B(2)(g) empowered the Trial Judge to make an order in the following terms:-
20. Not before 1 September 2022, the mother be permitted to file an application seeking to extend her time with the children or to discharge the requirement [for substantial attendance], upon the filing of an affidavit in support by a psychiatrist addressing the mother’s mental health, treatment she has received and the risk issues referred to in:
(a) [The single expert psychiatrist] report;
(b) [The family consultant’s] family report; and
(c) These reasons for judgment.
The Court found that that order, although styled as an injunction, could not have been made pursuant to ss 68B or 114(1) of the Act because it was not made for anyone’s personal protection, to restrain entry upon certain premises, to protect the marital relationship or property. The Court held that such order, if made pursuant to s 64B(2)(g)(ii) of the Act, goes further than that provision enables. At paragraph 34 of the judgment the Full Court noted that the order made positively forbids the mother from bringing any variation application for a period of two years, regardless of her changing needs and circumstances. As such, the Full Court concluded that the order purports to be something other than a “parenting order” within the meaning of s 64B(2)(g) of the Act and “is an injunctive fetter upon the mother’s right to bring further proceedings in respect of the children under Part VII of the Act as and when she sees fit”.
At paragraph 37 of Oberlin the Court held:-
…Unless the restriction is validly imposed by an injunction (such as one made pursuant to s 102QB(2)(b) of the Act or, more unusually, perhaps pursuant to s 114(3) of the Act), or by an order requiring preliminary steps to be taken before a new application is made (pursuant to s 64B(2)(g) of the Act), no statutory power exists for an order to be made impeding a litigant’s entitlement to commence fresh proceedings under Part VII of the Act. Once any such fresh application is filed, the question of whether it may then be prosecuted depends on the applicant’s ability to demonstrate compliance with the guideline principle in Rice & Asplund.
The orders sought in the alternative by the mother seek to restrain the father from bringing any further parenting application within three years of the making of final orders. Accordingly, the orders sought are in terms similar to those contemplated in the decision of Oberlin. Having regard to the decision of the Full Court in Oberlin, I am satisfied that the Court does not have the power to make orders pursuant to s 64B(2)(g) of the Act as sought by the mother.
SHOULD THERE BE AN ORDER PURSUANT TO S 102QB?
Part XIB of the Act deals with vexatious proceedings. Section 102Q(1) of the Act provides that “vexatious proceedings” include:-
(a)proceedings that are an abuse of the process of a court or tribunal; and
(b)proceedings instituted in a court or tribunal to harass or annoy, to cause delay or detriment, or for another wrongful purpose; and
(c)proceedings instituted or pursued in a court or tribunal without reasonable ground; and
(d)proceedings conducted in a court or tribunal in a way so as to harass or annoy, cause delay or detriment, or achieve another wrongful purpose.
Section 102QB(1) provides that the Court may make an order prohibiting a person from instituting proceedings under the Act if it is satisfied that:-
(a)a person has frequently instituted or conducted vexatious proceedings in Australian courts or tribunals; or
(b)a person, acting in concert with another person who is subject to a vexatious proceedings order or who is covered by paragraph (a), has instituted or conducted vexatious proceedings in an Australian court or tribunal.
Section 102QB(6) provides that for the purposes of subsection (1), the court may have regard to:-
(a)proceedings instituted (or attempted to be instituted) or conducted in any Australian court or tribunal; and
(b)orders made by any Australian court or tribunal; and
(c)the person’s overall conduct in proceedings conducted in any Australian court or tribunal (including the person’s compliance with orders made by that court or tribunal).
Where the Court is satisfied that a person has frequently instituted or conducted vexatious proceedings in Australian courts or tribunals, the Court may make any or all of the following orders (s102QB(2)):-
(a)an order staying or dismissing all or part of any proceedings in the court already instituted by the person;
(b)an order prohibiting the person from instituting proceedings, or proceedings of a particular type, under this Act in a court having jurisdiction under this Act;
(c)any other order the court considers appropriate in relation to the person.
The Court cannot make a vexatious proceedings order in relation to a person without hearing from that person or giving them an opportunity of being heard (s102QB(4)).
A vexatious proceeding order is a final order (s 102QB(5)).
What constitutes an abuse of process was considered by the Supreme Court of New South Wales (Commercial Division) in State Bank of New South Wales v Stenhouse Limited and Ors (1997) Aust Torts Reports 81-423 at 64,086 to 64,089. It held that a proceeding may be an abuse of process where:-
·The proceedings are unreasonably oppressive and unfair to the other party;
·The proceedings will bring the administration of justice into disrepute; and/or
·It is sought to re-litigate something that has already been determined in previous proceedings.
The meaning of the word “frequently” in the context of an application for vexatious proceedings orders was considered by Benjamin J in Cannon & Acres [2014] FamCA 104 at [440]. Benjamin J there described the legislative pathway he intended to adopt in relation to the application for vexatious proceedings orders as follows:-
(i) In accordance with s 102QB(1), I will determine which proceedings constitute vexatious proceedings instituted or conducted in Australian courts or tribunals,
(ii) If there have been vexatious proceedings, I will then determine whether such proceedings have been conducted or instituted frequently. In that consideration, I am able to have regard to proceedings instituted (or attempted to be instituted) or conducted in any Australian court or tribunal, orders made by an Australian court or tribunal and the person’s overall conduct in such proceedings, including compliance with orders made by that court or tribunal (including proceedings instituted (or attempted to be instituted) or conducted before the commencement of Part XIB of the Act); and
(iii) If that threshold is met, I will then consider whether to exercise the discretion set out in s 102QB(2) of the Act and make a vexatious proceedings order. In considering whether to make a vexatious proceedings order I considered the scope and nature of the orders sought and made.
The Full Court of the Family Court considered the matters to be taken into account in determining a vexatious proceedings application in Pencious & Searle (2017) FLC 93-805. The Full Court cited with approval the often-quoted passage in Official Trustee in Bankruptcy v Gargan (No.2) [2009] FCA 398 where, at [2]-[12], Perram J spoke of the general principles that apply to applications for vexatious proceedings orders. They are:-
… First, the making of such an order is an extreme remedy depriving its object of recourse to the enforcement of the law which is every citizen’s ordinary right. It is, therefore, not lightly to be made.
Secondly, the purpose of the order is not to impose condign punishment for past litigious misdeeds; it serves instead to shield both the public, whose individual members might be molested by vexatious proceedings, and the Court itself, whose limited resources and needs must be carefully managed and protected from the expense, burden and inconvenience of baseless and repetitious suits.
Thirdly, as might naturally be expected, such a severe power is not enlivened by the mere single occurrence of a vexatious claim. To err is human and transient lapses of judgment, even serious ones, may be found in the most reasonable of places. Instead, the power to make the order is conditional upon the litigant having commenced not only a single vexatious proceeding but also upon having commenced similar such proceedings in this Court or in other Australian courts.
Fourthly, the qualities of vexation to which O 21 is addressed are to be found, as the terms of r 1(1) show, in the commencement by the litigant of proceedings which lack reasonable grounds and where the litigant’s institution of such proceedings may fairly be said to be both habitual and persistent.
Fifthly, whether a proceeding is instituted without reasonable grounds is a different question to, although not wholly disconnected from, the inquiry into a proceeding’s legal merits. The wheat, no doubt, must be separated from the chaff but in this area the question is whether what is before the Court contains any wheat at all. Although, often enough, no great guidance is obtained by exchanging one formula of words with another, it will be usually of some assistance, limited perhaps, to ask whether the issues brought to the Court for determination are manifestly hopeless or devoid of merit. It is, in that context, important to distinguish the difficult from the ridiculous and the unlikely from the hopeless.
Sixthly, although the ways in which unreasonable grounds may manifest themselves are myriad, one form often to be found in the baggage of the vexatious is a failure, often a refusal, to understand the principles of finality of litigation which rescue court and litigant alike from a Samsara of past forensic encounters.
Seventhly, it is the related quality of repetition which underpins, in part, a need for the institution of the proceedings to deserve the appellations habitual and persistent. The litigant’s conduct will be habitual where the commencement of proceedings occurs as a matter of course when appropriate conditions for their commencement are present as was explained by Roden J in Attorney-General v Wentworth (1988) 14 NSWLR 481 at 492. That formulation may not wholly explain the litigant who commences proceedings on any occasion and without the presence of any conditions, whether appropriate or otherwise. In such cases, the idea of constant repetition driven by habit and symptomatic of an inability not to engage in the behaviour may be more useful. Persistence, on the other hand, generally suggests stubborn determination but, in the context of the vexatious, carries with it the capacity to endure failure beyond the point at which a rational person would abandon the field.
Eighthly, each of these notions – the want of reasonable grounds, habitual institution and persistent institution – are to be gauged objectively. But this does not mean that a litigant’s own protestation as to his or her own mental state is irrelevant; frequently enough, the vexatious are betrayed out of their own mouths. Rather, the need for objective determination protects courts from the vexatious litigant who is genuinely, but misguidedly, persuaded as to the correctness of his or her own conduct.
Ninthly, the power to make the order arises when proceedings commenced in the way described are found to exist. But the notion of a proceeding is a broad one including a substantive proceeding directed at the attainment of final relief and collateral applications within such a proceeding; further, it extends outside the proceeding itself and embraces appeals therefrom and applications which, whilst not made in the proceeding, are properly to be seen as collateral thereto – so much flows from the definition of proceeding in s 4 of the Federal Court of Australia Act 1976 (Cth).
Tenthly, other proceedings commenced before bodies which are not courts, such as the Administrative Appeals Tribunal, are not directly pertinent to the existence of the power but may nevertheless throw light on the vexatious nature of proceedings before the Court; so too, the existence of a body of such administrative litigation may have relevance to the question of whether the Court’s power to make the order, once enlivened, should be exercised.
Finally, once it is concluded that the Court’s power to prevent a litigant from commencing or pursuing proceedings has been enlivened, the considerations germane to the exercise of that power are unconfined. However, the factors which will be relevant are informed by the protective purpose which the order serves. Where a litigant displays insight into their previous litigious history this will, no doubt, be relevant for it will suggest – although not determine – a diminution in the risk posed to the public. On the other hand, the manner in which a litigant conducts herself in her affairs generally is also capable of throwing light on whether the commencement of further vexatious proceedings is likely. Those general affairs include the litigant’s defence to the proceedings by which the order restraining him is sought. Because of the protective nature of the jurisdiction it is also relevant to know the extent of the damage and inconvenience the litigant’s forays into the courts have caused, pecuniary or otherwise.
(Original emphasis)
Both counsel for the mother and the ICL submitted that the father has frequently instituted or conducted vexatious proceedings in the Federal Circuit Court (as it then was) and this Court.
The chronology of the father’s applications in relation to parenting orders in respect of X since is as follows.
(a)The father’s first parenting application was filed by him on 29 June 2012. The father sought both a location order and recovery order in relation to the child, who was then aged 2. He also sought orders that the child live with him and spend time with mother. On its face, that application could not be considered vexatious.
(b)On 7 January 2014 the father filed a Contravention Application. That application alleged the mother had contravened the orders made 16 August 2013 in relation to the father’s time with the child. The mother was personally served with the application and affidavit in support on 11 January 2014. On 22 January 2014, the father filed a Notice of Discontinuance in respect of that application (Exhibit R-3). Although it is not submitted that that application was vexatious, it is said that that was the first of a number of applications filed by the father that was subsequently discontinued; it is submitted that that course of conduct in filing applications, effecting service of them and then discontinuing them is a form of harassment and intimidation of the mother. Further, it is submitted that such conduct is an abuse of the court process. Having regard to the events that follow, there is much force in that submission.
(c)Final orders were made in respect of the father’s original Initiating Application on 9 October 2014.
(d)On 22 July 2016 the father filed his second Initiating Application in the Federal Circuit Court seeking final parenting orders for ‘fifty percent shared care parental time’ and ‘shared parental responsibility’ in relation to X. At that stage X was aged 6 years and had been in her mother’s sole care since 2014 when the father was incarcerated. On 24 November 2016, the father filed a Notice of Discontinuance in respect of that application. However at the hearing before Judge Turner on 29 November 2016, the father informed the Court that he did not wish to proceed with his Notice of Discontinuance filed 24 November 2016. As a result, the matter was adjourned for mention to 21 February 2017 in the Federal Circuit Court at Dandenong.
(e)On 7 July 2017 the father filed an Application in a Case seeking orders for the preparation of a s11F report. That application was listed for hearing on 7 August 2017 (in conjunction with the father’s Initiating Application which was listed for a hearing in relation to application of the principles established in Rice & Asplund).
(f)On 17 July 2017 the father filed an application for review in respect of the Registrar’s decision to list the father’s Application in Case on the same date as his Initiating Application. On 21 July 2017, Judge Jones ordered that the father’s application for review be dismissed.
(g)On 7 August 2017, the father’s Initiating Application was listed for hearing before Judge Jones. That day, orders were made granting leave to the father to again discontinue his application. The mother was represented at that hearing. It was submitted on her behalf that the father’s conduct in making application to the court in relation to parenting matters and then discontinuing his application at the hearing was a mechanism of harassing the mother, particularly given the history of family violence which culminated in the father being convicted of breaches of family violence orders, resulting in his imprisonment.
Again, there is much force in that submission in light of the father’s conduct in filing a further Initiating Application seeking final parenting orders on 19 December 2017, some four months later.
(h)On 26 July 2019 following a hearing in relation to the Rice & Asplund issue, orders were made by Judge Spelleken for the parties and the child to attend for a s 11F assessment and otherwise the proceedings were adjourned.
(i)On 2 October 2020 the father filed an Amended Initiating Application seeking orders that he be notified of any major long-term decision to be made by the mother, that the parties attend upon a family therapist for the purpose of advice as to the reintroduction of the father into the child’s life and seeking orders for information in relation to the child’s school.
(j)On 6 November 2020 I made orders that:-
· Pursuant to s.67ZW the DHHS prepare a report for the court;
· The father undertake a psychological assessment;
· The mother undertake a mental health assessment;
· The father submit to drug testing via hair follicle testing.
· Adjourning the matter for further mention.
(k)On 25 February 2021 I made orders listing the matter for final hearing on 11 June 2021. The father was represented at that hearing.
(l)The matter was listed for mention before me on 19 May 2021 due to the father’s lawyers filing a Notice of Ceasing to Act on 30 April 2021. The father appeared in person and made an oral application for adjournment of the proceedings for a period of nine to 12 months. On that date the father advised the Court that he did not have the financial or emotional capacity to progress the matter at that time. It was his position that he was responsible for the care of his partner and that ‘all of his energy at this time is devoted to her needs’.[1] The father’s application for an adjournment was dismissed. The father did not appear at or participate in the final hearing of his application listed 11 June 2021 to prosecute his application. It was submitted at that hearing and I accept that the father has failed to comply with the orders of 6 November 2020 that he:-
· File trial affidavit material;
· Undertake psychological assessment; and
· Undertake drug testing.
[1] Paragraph 11 of the Reasons for Judgment dated 19 May 2021
In my view, having regard to that chronology, and in particular the father’s history of filing applications and then failing to prosecute them, I am satisfied that he has abused the court’s processes. I am also satisfied that his conduct in making no less than three applications, causing them to be served and then discontinuing the proceedings is conduct that has harassed and annoyed the mother and likely caused her significant distress, particularly in the context of her suffering symptoms of post-traumatic stress disorder as a result of her experience of family violence.[2]
[2] Affidavit of Mr J filed 5 May 2021, paragraph 35
I also have regard to the father’s conduct in respect of this application, particularly his failure to comply with the orders of 6 November 2020 and his failure to appear at the final hearing of his application for parenting orders.
The father’s affidavit filed 26 March 2021 demonstrates his persistence in blaming the mother for him not having a relationship with X; he continues to allege that he is a victim of “reciprocal family violence”. He is also critical of the mother’s care of X and of the Court processes, deposing that:
Had an earlier Court acted in X’s best interest and allowed me to have a relationship with X things may have been different.[3]
[3] Father’s affidavit filed 26 March 2021, paragraph 9
Having regard to that evidence, it would appear there has been little change in the father’s attitude towards the mother or insight in relation to his own behaviour since 2012 when the first set of proceedings commenced.
Whilst it is not uncommon for self-represented litigants to file material which is emotive or indicates their frustration, in my view the father’s affidavit falls well short of any genuine attempt by him to advance his application before the court. It is a document which raises significant concern as to the bona fides of the application. Had he been genuinely motivated to pursue his application to spend time with X, in my view he would have filed relevant evidence, complied with court orders for his psychological assessment and drug testing and participated in the final hearing; those things did not occur.
Having regard to the history of applications filed by the father and subsequently discontinued or not proceeded with I am satisfied that those series of applications made by the father meet the threshold of “frequent” as contemplated by the Act. I am also satisfied that they are vexatious proceedings as defined by s 102Q of the Act.
As noted earlier in the judgment, I am satisfied that the father had notice of the application pursuant to s 102QB and had the opportunity to be heard in relation to that application; that he elected not to appear at the hearing of that application is not an impediment to it being dealt with.
The reality is that the father has filed a number of applications since 2012 seeking parenting orders in relation to X. He has repeatedly failed to engage with court processes so as to prosecute his applications. Significant resources have been applied by the court to enable the father to pursue his application. The father has repeatedly failed to avail himself of the opportunity of participating in the Court process. Having regard to those circumstances, I am satisfied that the father is a person who has instituted and conducted vexatious proceedings as contemplated by Part XIB of the Act.
Accordingly I will make orders pursuant to s 102QB(2)(b) of the Act. That order will not prevent the father from pursuing genuine claims under the Act as he will be permitted to seek leave to issue proceedings pursuant to s 102QE of the Act. However, that order will ensure that the father is prevented from using the court process as a means of harassing the mother.
THE ORDERS
The orders that I will make are as follows:-
1.That the final orders made 9 October 2014 continue in full force and effect.
2.That pursuant to s. 102QB(2) of the Family Law Act 1975 (Cth) (“the Act”) the applicant, MR SAFFORD born … 1973 be prohibited from instituting proceedings under the Act without first having obtained leave by the Court to do so pursuant to s. 102QE of the Act.
3.That the appointment of the Independent Children’s Lawyer be discharged at the expiration of 30 days from the date of these orders.
4.That all extant applications be otherwise dismissed.
I certify that the preceding one hundred and twenty-eight (128) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Johns J. Associate:
Dated: 27 October 2021
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