Spencer & Spencer
[2016] FamCAFC 212
•3 November 2016
FAMILY COURT OF AUSTRALIA
| SPENCER & SPENCER | [2016] FamCAFC 212 |
| FAMILY LAW – APPEAL – CHILDREN – With whom a child spends time – Appeal against an order for the mother’s contact with the child to be limited to the exchange of letters, photos, presents and videos – The mother’s complaints lack merit – Appeal dismissed. FAMILY LAW – APPEAL – VEXATIOUS LITIGANT – Appeal against an order restraining the mother from commencing further child-related proceedings – The mother concedes that her applications were all unsuccessful – The trial judge was not only justified but perhaps compelled to impose some limit on the proceedings – Appeal dismissed. FAMILY LAW – APPEAL – COSTS – Appeal against an order for the appellant to pay fixed costs to the respondent and Independent Children’s Lawyer – Appeal dismissed. FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Various applications to adduce further evidence dismissed, except to the extent that some documents were adduced by consent. FAMILY LAW – APPEAL – COSTS – Order for the appellant to pay the costs of the appeal sought by the respondent and Independent Children’s Lawyer, with enforcement stayed until the resolution of the property proceedings. |
| Family Law Act 1975 (Cth) – s 69ZN(4), 69ZQ(1), s 69ZX, s 97(3) , s 117(2A), s 117AB |
| APPELLANT: | Ms Spencer |
| RESPONDENT: | Mr Spencer |
| FILE NUMBER: | PTW | 7180 | of | 2010 |
| APPEAL NUMBER: | WA | 4 | of | 2014 |
| WA | 13 | of | 2014 | |
| WA | 22 | of | 2014 | |
| WA | 27 | of | 2014 | |
| WA | 31 | of | 2014 | |
| WA | 32 | of | 2014 |
| DATE DELIVERED: | 3 November 2016 |
| PLACE DELIVERED: | Perth |
| PLACE HEARD: | Perth |
| JUDGMENT OF: | Bryant CJ, Thackray & Murphy JJ |
| HEARING DATE: | 28 & 29 October 2015 12 April 2016 |
| LOWER COURT JURISDICTION: | Family Court of Western Australia |
| LOWER COURT JUDGMENT DATE: | WA 4: 21 January 2014 |
| WA 13: 8 April 2014 | |
| WA 22: 18 August 2014 | |
| WA 27: 28 October 2014 | |
| WA 31: 1 December 2014 | |
| WA 32: 21 November 2014 |
| LOWER COURT MNC: | WA 4: [2014] FCWA 2 |
| WA 13: N/A | |
| WA 22: N/A | |
| WA 27: [2014] FCWA 71 | |
| WA 31: N/A | |
| WA 32: [2014] FCWA 71 |
REPRESENTATION
| THE APPELLANT: | In person |
| COUNSEL FOR THE RESPONDENT: | Ms Giles: 28 & 29 October 2015 Ms Turley: 12 April 2016 |
| SOLICITOR FOR THE RESPONDENT: | Biddulph & Turley |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER | Ms Cohen |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER | Legal Aid WA |
Orders
By consent, the following documents be received as further evidence:
(a)the emails between the respondent and Dr B; and
(b) the documents produced by the Town E Medical Centre.
The appellant’s Applications in an Appeal otherwise be dismissed.
The appeals (WA 4, 13, 22, 27, 31 and 32 of 2014) be dismissed.
The appellant pay the costs of the respondent of and incidental to the appeals and the Applications in an Appeal:
(a) fixed in the sum of $54,976 for the period ending 29 October 2015; and
(b) in an amount to be assessed if not agreed for the period after that date.
The appellant pay the costs of the Independent Children’s Lawyer of and incidental to the appeals and the Applications in an Appeal:
(a) fixed in the sum of $14,000 for the period ending 29 October 2015; and
(b) in an amount to be assessed if not agreed for the period after that date.
Enforcement of Orders 4 and 5 be stayed pending delivery of final judgment in the property settlement proceedings between the appellant and the respondent or pending discontinuance of those proceedings, whichever is the earlier.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Spencer & Spencer has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT PERTH |
Appeal Number: WA 4, 13, 22, 27, 31 & 32 of 2014
File Number: PTW 7180 of 2010
| Ms Spencer |
Appellant
And
| Mr Spencer |
Respondent
REASONS FOR JUDGMENT
The appellant mother has filed six appeals against orders of Moncrieff J, all of which are opposed by the respondent father. The mother’s grievances largely concern the parties’ child, H, although minor elements of her appeals deal with interlocutory orders made in financial proceedings that remain part heard.
When proceedings started in 2010, the father only sought time with the child; however, by the time the parenting proceedings were concluded in 2014, orders had been made for the boy to live with the father and spend no time with the mother. The mother had also been prevented from making further parenting applications without leave, and had been ordered to pay $300,000 towards the costs incurred by the father and the Independent Children’s Lawyer.
For the reasons that follow, we have concluded that the appeals lack merit. Our reasons will also dispose of a miscellany of Applications in an Appeal, the filing of which has contributed to delay in resolution of the primary complaints.
Relevant facts
The parties married in 2008 and separated in February 2010. The child was born in 2008, and hence was less than two years old at the time of the separation.
The father was initially able to spend regular time with the child, but this ceased in October 2010. In February 2011, interim orders were made for the father to spend supervised time with the child each fortnight. These visits commenced in July 2011, but did not occur between November 2011 and October 2012 due to a dispute between the mother and the supervision service.
In February 2012, the child allegedly disclosed to the mother that he had been sexually abused by the father. The proceedings were thereafter conducted by the mother on the basis of her stated belief that this allegation was true.
The trial of the parenting proceedings took place over 25 sitting days in March, June and July 2013. For convenience, we will call this “the first trial”. In April 2013, while the first trial was part heard, Moncrieff J suspended the father’s time with the child after receiving a report from the supervision service indicating that the visits were not in the boy’s best interests due to the conflict between his parents.
On 28 August 2013, Moncrieff J delivered his reasons and made final orders for the father to have parental responsibility and for the child to live with him. In his reasons, which ran over 300 pages, his Honour found that:
a)the allegations that the father had sexually and physically abused the child during supervised contact were constructs designed to destroy the possibility of the child having a relationship with his father (at [849]);
b)allowing the child to believe that he had been sexually abused by his father was neglectful and abusive in itself (at [855]);
c)the mother had allowed the child to be abused in the context of “therapy”, which had served to reinforce the boy’s falsely held beliefs (at [857]);
d)the father had the capacity to provide for the child’s needs (at [871], [876] and [879]); and
e)the mother would not facilitate or encourage the child’s relationship with his father, whereas the father would facilitate a relationship between the boy and his mother (at [890]–[891]).
His Honour concluded:
907 Whilst my decision will bring pain to [the child], it is manageable, it will be interim. It will give him the opportunity to reattach to reality rather than a life shrouded in false belief with the consequences that may have for his mental health in the future and the potential to irrevocably harm him, or at the least psychologically scar him and potentially impede his ability to form normal relationships. Such a conclusion could never be in his best interests and accordingly, and whilst I am mindful and concerned at the pain I will inflict on [the child] and the onerous responsibility that I will place upon the father, I am satisfied that I should make such an order and that such an order is in [the child’s] best interests.
…
910 I do not at this point propose to make orders that [the child] have contact with his mother at all. I propose to adjourn the issue of contact for a period of two weeks to receive an update as to how [the child] is progressing and what management strategies have been put in place to best ensure his psychological welfare.
911 I need to be satisfied before I make an order for contact that [the child] will not be exposed to the emotionally abusive behaviour and psychologically damaging behaviours of the mother to which I have referred. Logically, contact will need to be supervised at a high vigilance level and I consider that Anglicare WA is the preferred supervisor given the more toxic view held of Relationships Australia by the mother, notwithstanding her allegations against Anglicare WA and her threats of litigation against each agency.
It is of fundamental importance to record that the decision for the child to reside with the father is not open to challenge, since the mother’s application for an extension of time to appeal was dismissed in July 2014, and an application for special leave to appeal was refused by the High Court in December 2014.
In the meantime, the proceedings continued to be heard by Moncrieff J. In October 2013, consent orders were made for the mother to spend supervised time with the child, subject to conditions. In January 2014, consent orders were also made for the mother to have telephone contact with the child.
On 21 January 2014, the mother was ordered to pay fixed sums of costs to the father and the Independent Children’s Lawyer in relation to the parenting proceedings. This order is the subject of the first of the current appeals.
The mother’s visits with the child ceased in March 2014 after the supervision service suspended the visits following its own review of the case. On 8 April 2014, Moncrieff J made orders formally suspending the visits pending receipt of a report about a proposed meeting between the mother and the supervision service. The second of the appeals relates to other orders made on this date.
The next three appeals are against orders made between August 2014 and December 2014. One of these, made on 28 October 2014, restrained the mother from instituting parenting proceedings without leave (the mother having filed a large number of unsuccessful applications in the previous year).
These orders were made while proceedings were ongoing about the mother’s time with the child. This part of the proceedings, which we will call “the second trial”, was completed over 10 days in June, July and September 2014.
On 21 November 2014, Moncrieff J made final orders for the mother’s contact with the child to be limited to the exchange of letters, photos, presents and videos. These orders are the subject of the last of the appeals.
His Honour explained in his reasons that the mother’s time with the child had been limited to telephone contact since March 2014 because she had failed to attend a meeting with the supervision service as anticipated by the orders of 8 April 2014. His Honour went on to outline difficulties that had occurred with the telephone contact, before concluding his 291-page judgment as follows:
511There is no doubt that [the child] loves his mother and he wants to have a relationship with her. There is no doubt that it was the hope and expectation that a relationship between [the child] and his mother would be normalised. That, however, has not come to pass. Whilst the [mother] wishes to agitate the fault of every other person apart from herself in this outcome, it has been within the [mother’s] gift to review her actions.
…
515 The [mother] appears to be incapable of recoginising [sic] that her actions have the potential to visit upon [the child] significant psychological harm and until such time as she is capable of doing so and maintaining a relationship with [the child] that is not simply a tool for her own personal agenda, it is difficult to discern any benefit to [the child] in maintaining a relationship with his mother or that the same could be positively meaningful or do other than place him at risk of psychological harm.
517 This matter engenders a result that is not a positive one but rather is one that is directed towards doing the least harm to [the child] given the applicant’s attitude and conduct.
…
607 … I have determined that is in [the child’s] best interests that the orders pursuant to which the [mother] has contact with [the child], now only by telephone, be discharged.
608 I do consider it appropriate however that she have the opportunity to communicate with [the child] by way of correspondence and to send him gifts and that [the child] be at liberty to write to his mother.
…
621 I am further satisfied that I should make orders that finalise these proceedings. I have no doubt that the same have not only had a significant financial impact upon the respondent but also a significant emotional one which he has had to manage whilst parenting [the child]. The time, cost and inconvenience to him inevitably must have a negative effect upon [the child]…
We heard the six appeals and two Applications in an Appeal over two days in October 2015. While judgment was reserved, the mother filed two more Applications in an Appeal. We heard these at a special sitting in April 2016, following which we again reserved our judgment.
After the April 2016 hearing, the mother sought to file another Application in an Appeal seeking a “temporary stay / adjournment”, but we instructed the Appeal Registrar not to accept this for filing. In July and August 2016, the mother filed a further Application in an Appeal and an amended version of that application, which we intend to dispose of summarily on the papers.
By the time the mother had finished filing all of her appeal books and applications, we had before us in excess of 13,000 pages of documents.
The September 2015 Application to Adduce Further Evidence
We will deal first with the application filed on 30 September 2015 seeking to introduce further evidence in the appeal. The material proposed to be relied upon ran to more than 2,400 pages. The mother also sought to rely on two other large documents, but we declined to receive them because they were the same prolix submissions that had been properly rejected by the Appeal Registrar (transcript, 28 October 2015, p 109).
We do not propose to discuss all of the documents the mother seeks to adduce in this application. Many were not referred to in her submissions or in her rambling affidavit in support of the application. Others that were mentioned did not support the propositions that the mother wished to make in reliance upon them. In fact, the mother’s interpretation of the documents provided support for the finding that she is inclined to arrive at conclusions that “are without objective or rational support” (reasons, 21 November 2014, at [412]).
The only part of the application warranting detailed discussion concerns the mother’s primary proposition that the trial judge was misled about the nature of the father’s relationship with the psychologist, Dr B, who gave evidence at the second trial. The mother claims that the father, his legal advisors and Dr B concealed the fact that Dr B was in a “therapeutic relationship” with the father, and hence had a conflict of interest, since she presented herself as being the child’s psychologist.
The mother argued that if this conflict had been revealed, the trial judge would not have placed the weight he did on Dr B’s evidence. Indeed, she went so far as to submit that Dr B’s “unethical and illegal behaviour” would have become a matter for the police. The conflict was sought to be established by reference to emails between the father and Dr B, and communications between the father’s GP and Dr B, which the mother says came into her possession only after the second trial.
It is controversial whether the mother had seen the emails before the second trial. The father swore that he provided them to his solicitors, and he produced a copy of a letter from his solicitors dated 30 April 2014 by which they were seemingly sent to the mother. The mother, in an unsworn statement at the bar table, denied ever receiving the letter (transcript, 28 October 2015, p 60). We are unable to determine this controversy, but will nevertheless proceed on an assumption that the mother did not receive the letter of 30 April 2014.
Dr B became involved with the father and the child after the substantive orders were made on 28 August 2013 following the first trial. The orders made relevantly provided as follows (emphasis added):
13.The father shall follow the recommendations of the Single Expert in consultation with the Independent Children’s Lawyer in relation to therapy for himself and the said child to assist in the transition for the child moving from the mother’s home to the father’s home.
It will be seen that Order 13 envisaged much more than the mother’s interpretation of it would suggest, namely that it was intended that the father “would take the child to Dr [B] and receive some sort of parenting tips” (transcript, 28 October 2015, p 6). In any event, in replying to the application to adduce further evidence, the father deposed that:
·he had never heard of Dr B until 28 August 2013, when he was told that he and the child had to see her in compliance with Order 13;
·he then promptly went to his GP to obtain a “GP Mental Health Plan and a referral to Dr [B] for both myself and [the child]”; and
·he had attended all appointments made by Dr B for himself and the child, and followed her recommendations.
The mother was aware at the time of the second trial that the GP had made the referral without seeing the child (transcript, 3 July 2014, p 21). She was also aware that Dr B was seeing the father as well as the child, since the father had deposed as follows in his affidavit filed on 30 May 2014:
42.I continue to receive an enormous amount of guidance and assistance from [Dr [B]] regarding [the child] and how to deal with all that has happened to him, including now not having any physical contact with [the mother].
Nevertheless, in submissions on appeal, the mother drew attention to the fact that Dr B said under cross-examination (transcript, 2 July 2014, p 82):
No. No. Not at all. I’m [the child’s] therapist and my job is just to work with [the child]. The only people that I have specifically sought out to see has been you, and your father, in an attempt to get him to persuade you to come back into [the child’s] life basically.
It must be noted that this answer was in response to a question from the mother enquiring whether Dr B had ever spoken to the father’s parents. When we asked the mother to confirm that she was in no doubt during the second trial that Dr B had been seeing the father, she responded by saying (transcript, 28 October 2015, p 9):
Only at the initial stage of – so only for setting up routines. There was one visit that was declared…
The mother’s assertion was disingenuous since, inter alia, it ignored this passage from Dr B’s evidence (transcript, 2 July 2014, p 16 et seq):
Just looking at your practice, when you work with children, how do you incorporate or involve the parents, if at all?‑‑‑ I always include the parents because children are never seen – never ever by clinicians seen as entities on their own. They’re always seen as individuals within a family, or within a context. So whether that’s school, with a family or so forth. But parents have to be included, and right from the very beginning one of the things that I do is get a really thorough developmental history, or background history, before I start working with children.
So if you look specifically at this case ‑ ‑ ‑?‑‑‑Yes.
‑ ‑ ‑ and [the child’s] circumstances, you’ve worked with [the father]‑ ‑ ‑?‑‑‑Yes.
…
…Just in relation to your work with [the father], how do you view his engagement with you?‑‑‑His engagement with me? His engagement has been exemplary. There’s – he has been fully engaged from the very beginning with his focus being only to get information from me about how best to help [the child].
The trial judge was therefore well aware that the father was intimately involved in the therapy provided by Dr B. It must also be stressed that Order 13, by its own terms, anticipated that the “therapy” was not only for the child, but also for the father. Indeed it is difficult to envisage how Dr B could have assisted the boy to transition into the father’s home unless she was also heavily engaged with the father.
The mother sought to make much of the fact that the referral to Dr B was associated with the preparation of a “Mental Health Plan” which was only for the father. She argued that there was “never any mental health care plan for the child, referral for the child, invoice for the child, receipt for the child, anything for the child to see [Dr [B]]”, and that accordingly, Dr B’s evidence that she had seen the child was “deceitful” and “not to be believed” (transcript, 28 October 2015, pp 13–14). After a warning from the bench, the mother retreated from her submission that Dr B might not have seen the boy at all, and contented herself with submissions that Dr B had an undisclosed conflict of interest and that there were no documents to corroborate the fact that she had seen the child.
Ironically, the emails between the father and Dr B which the mother wants adduced demonstrate that Dr B was seeing the child and that the entire focus of the communications was on the boy’s welfare. Although the matter was put in dispute by the submissions of the father’s counsel, we are prepared to proceed on the basis that the further evidence might suggest that the GP prepared a Mental Health Plan only for the father and not for the child; however, we do not consider that this would establish anything more than that this was the means by which the father complied with Order 13. We note also that the GP’s letter of referral drew Dr B’s attention to the fact that the father had been “ordered to have some psychological counselling along with his son” (emphasis added).
Dr B’s first report to the father’s GP, which is part of the proposed further evidence, also makes clear that the focus of her therapy was on the child:
Thank you for referring [the father] to me under the GP mental health plan. [The father] has been under considerable stress over the past few months following a long and bitter Family court dispute with his ex-wife. Having recently been granted custody of the couple’s 5 year old son, [the father] has had to adjust to single parenting. He has been very responsive to the needs of his young son but this has also been a very distressing time for him.
I am working with [the father] to assist him to support and aid his son in the sudden loss of contact with his mother and with changes that have occurred due to Family court orders.
The mother ultimately had to concede that every one of the emails related to the child, and that none related to the father’s own health. The mother further, albeit belatedly, agreed that if the emails had been available at trial they would have “wiped from the water” any suggestion that the father was Dr B’s patient. The mother also agreed with the proposition that “the patient here, the person of focus here, was the child” (transcript, 28 October 2015, p 45). In the absence of any “conflict”, the mother’s arguments about this part of the proposed further evidence largely fall away.
The mother did seize upon a “tick-a-box” statement in the Mental Health Plan which suggested that the father had previously had “suicidal ideation”. In his affidavit in reply to the further evidence application, the father denied that he had ever had such ideation. We are not in any position to assess the basis upon which the GP ticked that particular box. In any event, the Mental Health Plan expressly recorded that the father did not have suicidal ideation at the time the plan was prepared, and he was assessed by the GP as only having “generalised anxiety” with “interpersonal related stress”. Even had the trial judge been informed that the father had admitted once having suicidal ideation, there is no reason to consider that this would have had any impact on the question his Honour had to determine, namely whether it was in the child’s interests to spend time with the mother. It is again important to recall here that the question of whether the boy should live with the father has been determined by the decision of the High Court and is therefore not open to challenge in these appeals.
The mother also argued that if the emails had been disclosed, they would have shown a “negative” relationship between the father and the maternal grandfather, and that the trial judge would then have been able to infer, contrary to what he did infer, that the father would not continue the child’s relationship with her side of the family. The emails establish nothing of the sort. On the contrary, the father’s email of 7 January 2014 to Dr B said that the boy “enjoyed his time with his pop”. The assertion of negativity in the relationship is based on a statement in the emails that the father doubted the suitability of the grandfather to supervise a visit between the mother and the child. That says nothing about the father’s attitude toward the grandfather spending time with the child, and we note that the email of 4 December 2013 said the father “would like to get [to] the point where [the grandfather] can supervise”.
The mother also sought to adduce evidence that the father had undisclosed communications with Dr B during the second trial. The documents show nothing more than he had taken the child to see Dr B during an adjournment, in accordance with his obligation to do so pursuant to Order 13.
The mother also sought to rely on documents produced by the Town E Hospital and an insurance company relating to a motor vehicle accident in which the child was involved in 2013. The trial judge was told about this accident, and it is not clear how the documents could have made any difference to the determination of whether it was in the child’s interest to spend time with the mother. The records indicate that the father took the boy to the hospital as a precaution; that he presented without symptoms of pain and with only a “minor seat belt bruise”; and that no treatment was required before he was sent home. The mother seeks to make something of the fact that she only later discovered by issuing a subpoena during the property proceedings that the vehicle had been “written off” in the accident and replaced by another. Whatever may have been the relevance of any non-disclosure of this fact in financial proceedings, we fail to see the relevance to the parenting proceedings.
For these reasons, we conclude there is no basis for the introduction of the further evidence to support the appeals. In fact, some of the documents seemed to buttress the decision of the trial judge. It was on this basis that the father and Independent Children’s Lawyer ultimately consented to the introduction of the emails between Dr B and the father and the documents from the Town E Medical Centre. We will therefore receive those documents, but the application will otherwise be dismissed.
The Notices of Appeal
The mother’s arguments were directed primarily to the three appeals that are clearly of most significance, namely:
·WA 32 of 2014 which challenges the orders made after the second trial;
·WA 27 of 2014 which challenges the order limiting the mother’s right to make further applications in child-related proceedings; and
·WA 4 of 2014 which challenges the costs order relating to the first trial.
The other three appeals (WA 13 of 2014, WA 22 of 2014 and WA 31 of 2014) challenge interlocutory orders. The mother scarcely touched on these and to the extent she did, her submissions were really particulars of the complaints advanced in the main appeals. We will therefore not deal with them separately.
The commonality in the grievances can be seen in the 32-page document the mother filed, which she called “Minute of All Grounds of Appeal”. This document was designed to encapsulate all of the grounds in the six Notices of Appeal. The extent to which the complaints overlap can be seen from the statement in the Minute that there are “no specific grounds that are not relevant to the other appeals – only different versions of same case and factual content”.
As a self-represented litigant (albeit one with a law degree), the mother was afforded a great indulgence in being permitted to argue her Grounds of Appeal at all, since they should properly have been struck out, given their prolixity and content. Three examples will illustrate the point:
(39)The Justice failed to take into account the fact that [the child] will want to read transcripts etc … when he is older and see who caused him so much harm. The applicant has pursued justice, but there hasn’t been any to date. The role of the ICL etc. will look very dodgy in the light of the new evidence provided by the Respondent that is to be adduced. In the interim, the Justice failed to take into account the child focused action of the applicant to have the child protected and the record corrected. Again, the Justice’s attitude gave rise to an apprehension of bias. …
…
(34)It is ironic that the Justice permitted the Respondent to cite financial excuses for evoking sympathy when the finances haven’t been heard and the Respondent’s behaviour was contrary to the impression he gave the court i.e. he was going to be available for the child by hiring a worker, leasing the farm etc. Even the ICLs sought to rely on this factor to support the Respondent and when he had the child contact by radio was deemed availability [sic]. The above has given rise to a perception of bias and a lack of child focus. The Justice failed to take into account that the failure to keep agreements is a trait possessed by the Respondent.
…
(92)The Justice claimed that he didn’t know what I was talking about in relation to Lindy Chamberlain being wrongly accused of a crime etc. Yet he indicated that he did understand at the hearing. …
Sensibly, those opposing the appeals did not press an application to strike out the grounds, but were content to try to deal with the complaints on their merits. We too attempted to assist the mother in advancing her argument by inviting her to give us her four or so best representative examples of the pastiche of complaints made under the 10 headings that she had used in her 54-page summary of argument. The mother informed us that she found this approach to be very helpful and she largely followed it.
Appeal WA 32 of 2014 – The parenting appeal
We will deal first with the submissions insofar as they relate to the parenting appeal. Our reasons will be structured by reference to the ten headings and the examples provided by the mother, since they embrace the main challenges.
1. DECEPTION – PERVERSION OF JUSTICE & LACK OF PROCEDURAL FAIRNESS
2. MISLEADING/DECEPTIVE AND FALSE TESTIMONY
3. DECEIT OF WITNESSESS [SIC]
The only complaints under these first three headings related to the alleged non-disclosure of the “therapeutic relationship” between the father and Dr B. We have already dealt with this issue in disposing of the mother’s application to adduce further evidence. Nothing further need be said.
4. WITHHOLDING RELEVANT DISCLOSURE
This complaint also focuses on the alleged relationship between the father and Dr B, but it also repeats the mother’s assertion about the father’s alleged failure to provide “full and frank disclosure of the [father’s] financials, the child’s medical and the child [sic] school history in the [father’s] care”.
The fact that the complaints are, in reality, directed to the outcome of the first trial can be readily seen by the submission under this heading that the father and the Independent Children’s Lawyer “had a vested interest and a financial interest in the Judgment being retained no matter what happened to the child”. Nothing advanced by the mother under this heading rationally explained how the allegedly withheld documents would have been relevant to the second trial.
The impression that we obtained from perusing the record is that rather than having provided too few documents to the mother, the father and his advisers provided far more than was necessary, given the parameters of the dispute. It would seem, in fact, that the father followed “the path of least resistance” in handing over documents demanded by the mother, with a view to avoiding facing further applications by her for their production.
Accordingly, we are not satisfied there is any merit in this complaint.
5. BIAS – PERCEIVED AND ACTUAL
An overarching theme in the mother’s complaints was about what she termed “objective bias” on the part of the trial judge. Four examples were provided to support this part of the argument.
First, the mother relied on the fact that the father’s evidence was preferred where it conflicted with hers. Clearly, without more, that is not evidence of bias, since a judge must express a view in relation to credibility of the parties where that forms part of his or her reasoning. In any event, the credit finding about which the mother complains was made in the judgment after the first trial (reasons, 28 August 2013, at [524]). The High Court’s decision prevents the mother agitating her most profound grievance, which arises from that trial.
The second assertion was an extension of the first, namely that his Honour preferred the father’s witnesses over those of the mother. Again, this is evidence of nothing more than his Honour doing what his judicial oath required him to do.
Thirdly, the mother complained that his Honour had said he trusted the father to behave “as a responsible and appropriate parent” and in doing so had commented that this “is quite clear from the voluminous judgment I produced in this matter. If [the child] needs medical attention, I am confident that he will get it” (transcript, 21 January 2014, p 17). The mother said this was one of the worst manifestations of the trial judge’s bias. His Honour’s comment here was made prior to the second trial in response to the mother’s request for an order that if the child “attends Anglicare with extensive bruising that an independent medical person has a look at him”. In light of the findings made following the first trial, it was appropriate for his Honour to respond as did. His remark could not have led to any apprehension that he had prejudged the remaining issue, namely the time the child was to spend time with the mother.
Fourthly, the mother complained that the trial judge allowed the Independent Children’s Lawyer to lead evidence which his Honour knew or should have known was false. This contention finds its foundation in this paragraph of the ICL’s affidavit filed on 5 September 2014:
34.On 8 April 2014, [the mother] also attempted to file a subpoena for the production of Dr [T’s] file despite Dr [T] not having had any involvement in the proceedings since he gave evidence at the substantive trial. …
This part of the complaint wrongly assumes that a trial judge has any control over assertions made by a witness in an affidavit. It is therefore unnecessary to comment on what was a minor inaccuracy in the statement by the Independent Children’s Lawyer, especially as there could be no rational suggestion that the inaccuracy was relevant to the matters the subject of these appeals. We do note, however, that we were not taken to any attempt by the mother at trial to correct the inaccuracy, part at least of which was within her knowledge.
Although the mother made other remarks in the course of her submissions designed to demonstrate that the trial judge was biased against her, in reality her submissions were nothing more than that she was aggrieved that the judge had not made the findings she wanted, including that there had been a “cover up” by agencies such as Anglicare and Relationships Australia, which should have been referred to the authorities for investigation.
The mother was particularly concerned that the trial judge refused to accept that the father was responsible for bruising she claimed the child had repeatedly sustained. Once again, this is evidence of nothing more than a trial judge carrying out his duty. His Honour’s decision on this point was no doubt informed by his assessment of the father and the credibility, or lack thereof, of the mother. On this particular issue, his Honour also no doubt took into account evidence such as this extract from the report of Dr B which he reproduced in his judgment following the second trial:
In the time that I have been working with [the child] I have asked him about any bruising that I have seen and he has always talked to me about how he may have got these bruises. There have been no suspicious circumstances surrounding these bruises. None of them have been of the severity that [the mother] is describing. [The child] is a healthy well-adjusted little boy.
His Honour also would have had in mind other evidence such as this extract from the report from Anglicare which he also reproduced in his reasons:
On the 23rd November and the 30th November, [the mother] approached staff regarding her concerns for [the child’s] well being. She felt that [the child] was covered in bruises, some consistent with finger marks, and welts. The Case Coordinators had, on [the mother’s], insistence taken note of marks on [the child’s] body and felt that they were consistent with mosquito bites and bruising that could be expected in an active child of this age.
For these reasons, we find no merit in the assertion the trial judge was biased.
6. LACK OF PROCEDURAL FAIRNESS & DENIAL OF NATURAL JUSTICE
Another overarching complaint of the mother was that she had not been afforded procedural fairness, and had thereby been denied natural justice. Again, she provided what she considered were the four best examples (transcript, 28 October 2015, p 89 et seq).
The first example was that the trial judge had failed to ensure that the father complied with “the court rules of disclosure”. The second example was that his Honour allowed the father and the Independent Children’s Lawyer to make submissions to have the mother “declared vexatious while the disclosure wasn’t complete”. The part of the “disclosure” that was said not to have been complete was “from medical files, school files”. The mother argued that if proper disclosure had been provided, the father would have been “declared a vexatious litigant” rather than her.
These two examples were largely supported by reference to the documents which the mother sought to have adduced as further evidence. However, we have not been persuaded that those documents would have had any impact on the outcome, and we are not persuaded that his Honour erred in failing to take steps to ensure that the father gave further disclosure in circumstances where the father said he had made full disclosure.
The third example related to the trial judge’s refusal to allow the mother to issue various subpoenas to obtain further documents. The request for subpoenas to be issued was canvassed at a hearing on 8 April 2014, where his Honour found that the mother was either “fishing” for information or seeking information that was not relevant (transcript, 8 April 2014, p 51). Nothing advanced by the mother in support of this part of her complaint persuaded us that his Honour erred, as the following three examples will illustrate.
The mother wanted to issue a subpoena to a school attended by the child because she said, inter alia, “I would like to know what has been said to the school about [the child’s] mother” (transcript, 8 April 2014, p 51). His Honour was right in categorising that as “fishing”. His Honour also refused to issue a subpoena to another school to obtain a copy of the child’s school report. In refusing to issue the subpoena, his Honour made a direction that “if there are any reports that have been prepared by [the school], then copies are to be provided by the father to the mother” (transcript, 8 April 2014, p 53). This was a perfectly sensible way of dealing with the issue. The mother also wished to subpoena the Town E Hospital because she said “I think the issue needs to be resolved as to why [the child is] so scared of the airbags” (transcript, 8 April 2014, p 52). His Honour properly responded by saying “I fail to see the relevance of that to the enquiry of the court”.
When the mother complained at a later hearing about the refusal to issue the subpoenas, his Honour again explained his decision, making the important point which the mother repeatedly failed to appreciate in her submissions on appeal (transcript, 16 June 2014, p 6):
Can I interrupt you just for one moment, [Ms Spencer], and remind you that this is not a review of where [the child] lives. This is to do with the time you spend with him, and if indeed you spend any time with him, which was the position to be taken by the ICL, whether that is still the ICLs position – having received the report of [Dr [B]], I am yet to determine. Your subpoenas were directed to matters other than that.
They were fishing expeditions of the broadest and, may I say, questionable relevance – the broadest terms and the most questionable relevance. …
The mother’s final example was that the trial judge had “permitted the ICLs to influence witnesses”. For example, it was asserted that counsel for the Independent Children’s Lawyer “influenced” Dr B. Again, the mother failed to appreciate that her appeals can only properly be directed to identifying error by the trial judge, not by others involved in the proceedings. In any event, the mother’s submissions also evinced a misunderstanding of the role of the ICL. We should add that nothing the mother put to us established that there was any impropriety on the part of the ICL, let alone any impropriety of which the trial judge should have been aware, or could have controlled.
This part of the complaint also lacks merit.
7. ERROR OF LAW – NOT IN CHILD’S BEST INTEREST (WRONGFUL PURPOSE)
8. ERROR OF FACT – TOOK INTO ACCOUNT IRRELEVANT, FAILED TO TAKE INTO ACCOUNT RELEVANT [SIC]
9. ERROR OF LAW
These headings served as a vehicle for the mother to repeat earlier complaints about bias, procedural fairness and non-disclosure. The fact that the complaints were also primarily directed to the outcome of the first trial can be seen from the opening submission where the mother said:
Regardless of how much the Trial Justice disliked the [mother] (for whatever reason) he would not in good faith have placed a child with a father who was depressed, anxious, lacked motivation and had had ideas of suicide etc.
The mother asserted in particular that the trial judge had failed to make orders protecting the child by “not applying the provisions in relation to the abuse of the child” (transcript, 28 October 2015, p 104). Not only was this submission directed to the outcome of the first trial, it also amounted to little more than a complaint that the trial judge had made findings contrary to those for which the mother contended.
Otherwise, the mother submitted that the findings were “in many cases” not open to the trial judge (transcript, 28 October 2015, p 106). As a result of these errors in fact finding, the mother argued that “you then end up with a situation where the wrong law was applied as a result, not necessarily that the law was wrong, but the application of it wasn’t right”. The difficulty with this proposition is that nothing advanced by the mother persuaded us that his Honour had made any errors in the findings that he made.
The mother specifically asserted that the trial judge had “failed to consider” that the child’s comment “about putting a finger up his mother’s bum … was not innocent”. The trial judge did, in fact, consider this issue at [299] to [301] of his reasons after the second trial. His Honour found, as was open to him, that the remark was “entirely benign” when seen in context.
The mother also contended that the trial judge should have found that the father had “hidden evidence” (transcript, 28 October 2015, p 118). We endeavoured to tie the mother down to the specifics of this assertion, but to the extent she responded, it was apparent that the matters related to the child living with the father, rather than the issue of whether the child should spend time with her. As best we could understand, the “hidden evidence” included the documents which were the subject of the further evidence application, but we have already ruled that the production of those would not have affected the outcome.
This portion of the complaint also fails.
10. MISUSE OF JUDICIAL DISCRETION
The mother advised that the matters of importance arising under this heading were those at [5] and [6] on page 25 of her summary and at [61] on page 29.
The argument pertaining to [6] on page 25 was not developed orally and we confess we do not understand its thrust in its written form.
Paragraph 5 on page 25 was directed to this finding following the second trial:
525The affidavits are directed at matters that were yet to be determined at the time they were filed (namely by this judgment) and are little more than a continued rehash of expansive conclusion and unsupported allegation of the child being groomed in untruths, with new allegations that the child’s speech is so slurred and difficult to understand that he appears drugged, further allegations of grooming and inferentially, further allegations of sexual abuse.
The mother submitted that the trial judge had “mocked” her in this paragraph, but we see it merely as the trial judge concluding that her claims were unsubstantiated. When we suggested to the mother that his Honour was not “mocking” her, she fell back on a submission that his “demeanour in the court and his comments and the way he conducts himself” and “the way he reacts” were what led her to believe she was being “mocked” (transcript, 28 October 2015, p 125). However, in this instance, the remarks were made in a written judgment and therefore speak for themselves.
The complaint at [61] on page 29 of the mother’s submissions was that, in effect, the trial judge failed to find that the father
had an ulterior motive for withholding key material – to obtain and retain the judgments in his favor [sic], control the child and obtain funds from the Government to have a child in his possession – control and financial.
Clearly, this is a finding that the mother would like his Honour to have made, but nothing advanced in argument persuaded us that there was any error on the part of the trial judge in failing to make such a finding.
The mother also complained about the trial judge having referred to her “by a psychological term … which was completely outside his field of expertise” (transcript, 28 October 2015, p 127). The term appeared in this paragraph of the reasons after the second trial (emphasis added):
438 Almost inevitably [Dr [B’s]] views, a significant portion of which I replicate below, were at odds with that of the [mother]. For the [mother], however, to represent Dr [B] as abusive is farcical and is a tragic reaffirmation of the [mother’s] fixated narcissistic view…
Although we acknowledge that we were not provided with the transcript of the first trial, we are unware of any evidence to establish that the mother has a “narcissistic” personality in the formal psychological sense, but we note that the Single Expert’s testing found that the mother’s “profile showed a very high elevation of the Positive Impression scale”. Indeed, the only reference we were able to find in the record to “narcissistic personality” was at [321] and [322] of the reasons following the first trial, where his Honour recorded that the mother had told her psychologist that the father had “a narcissistic personality”.
While the mother seems to have diagnosed the father’s personality, the trial judge did not do the same in relation to the mother. His Honour only said she had a “fixated narcissistic view”. Clearly his Honour was doing nothing more than using “narcissistic” in its dictionary sense of “self-admiring” in order to describe his perception of the mother’s “view”, not her “personality”.
The fact his Honour was not purporting to make a diagnosis of the mother’s personality is borne out by what he said in a later paragraph of his reasons:
600 I also reflect on the observation of Dr [B] with which I agree and the observations made by the Independent Children’s Lawyer, with which I also agree, in terms of the quest to find a rational explanation for the [mother’s] behaviour. Absent issues with her mental health, the conclusion must be that she is driven by malice and that her behaviour is vindictive. The content of the applications tend to further support such a conclusion.
As there is no merit in this complaint, and as all the earlier complaints lack merit, the appeal against the parenting orders will be dismissed.
Appeal WA 27 of 2014 – The vexatious litigant appeal
The next substantive appeal was directed to the injunction the trial judge made on 28 October 2014 restraining the mother from instituting further parenting proceedings without leave, such order being consequential upon a declaration that the “the Child Related Proceedings conducted by the [mother] are vexatious as defined in Part XIB of the Act”.
The mother first submitted that his Honour erred in finding that many of the applications she made to the court were for a malicious or vexatious purpose. The mother submitted that the majority of her applications were
in relation to trying to get disclosure, a fair trial, subpoenas, access to witnesses, access to material, to stay the proceedings while this could be sorted; adjourn the proceedings when the ICLs wanted to put new evidence in September 2014, so that the issues of disclosure could be sorted out.
(transcript, 29 October 2015, p 185)
In summary, the mother argued that his Honour had been wrong to find that her applications were vexatious because they were no more than what was required to establish the issues in the case. She submitted that it was the father’s conduct in failing to make adequate disclosure which had necessitated her making so many of the applications. However, as was pointed out during argument, the merit in the applications depended upon whether they were successful (absent a successful appeal against their dismissal). The mother conceded that every one of her applications was unsuccessful, and that none of her appeals or attempts to appeal succeeded.
The mother’s second submission was that she ought not to have been “declared a vexatious litigant” because there had been many communications between the Independent Children’s Lawyer and other parties that were not fully disclosed. The relevance of this to the appeal is not immediately apparent, but the flaw in the argument is that it assumes there is an obligation on an ICL to disclose all of their communications.
The third submission was that the trial judge failed to take into account the fact that many of the mother’s applications had to be made to protect her child. In this context, she referred to her concerns about what she said had been constant unexplained bruising. The issue of bruising on the boy was discussed extensively by his Honour in his judgment following the first trial and the mother’s concerns were discounted. Yet, she continued to make such allegations, as is apparent from the reasons delivered following the second trial. His Honour’s findings, which we have concluded were open to him, establish that it was not necessary for the mother to persist in making claims of abuse of the child.
The mother also submitted that many of her applications would not have been “required if more independent witnesses had been able to be called”, and that she had asked for this to occur and been refused (transcript, 29 October 2015, p 196). The example given was the trial judge’s refusal, at a directions hearing on 8 April 2014, to allow the mother to call the paternal grandmother to give evidence. We set out below the relevant passage, commencing with a comment his Honour made in response to the mother’s request to subpoena a teacher to give evidence “about [the child’s] actual development and his social and psychological behaviour at school” (transcript, 8 April 2014, p 39 et seq):
HIS HONOUR: This is not a rehearing. Let me make that quite clear.
[SPENCER, MS]: No.
HIS HONOUR: Absolutely clear and I suggest you might use some time doing some research, starting with a case called Rice v Apsulnd, A-p-s-u-l-n-d, and the numerous cases that have considered the principle expounded in that matter.
[SPENCER, MS]: The – one other person I can see that perhaps could be a useful witness to the court is [the paternal grandmother]. I understand that [the paternal grandmother] spends a lot of time with her [sic] rather than the father.
HIS HONOUR: So, how’s that going to assist me in determining the issue that I have to determine, which is the extent, if any, of any future contact that you have with your child?
[SPENCER, MS]: It’s to do with the relationship he has with the paternal family and what’s in the best interests of the child.
HIS HONOUR: That’s a re-agitation isn’t it? I’m not going to re-agitate this matter, [Ms Spencer]. I’m not. I’m going to deal with the current issues before me and they will be issues that do not include a re-visitation of findings already made. I suggest that you do research some of the law on this or obtain some advice, as I understand that you have, and I’m sure I have read it. It’s something that you have put before me that you have sought assistance from a senior counsel in the matter.
It might be – well be a matter about what you might want to seek some advice in terms of what the limits are and the limited nature of the inquiry. And that’s why I think it’s very important that you consolidate what it is that you seek and then we can take matters from there. Insofar as witnesses are concerned, I would need considerable persuasion to involve [the paternal grandmother] and I could frankly see, on the face of it, from what I have read, which is a considerable volume of material, other than commentary that there would be no forensic purpose.
[SPENCER, MS]: In order to put an application in for a witness to be added, is there a correct format to do that?
HIS HONOUR: No. What I will do is, when the matter is allocated a hearing date, I will bring it back before me for monitoring and we will define a list of witnesses. But may I say that I will need considerable persuasion for the witnesses to be beyond each of the principal parties, Dr [G], Dr [B] and a representative from Anglicare and in support of any suggestion that any other witness should be called, I will need to be persuaded as to the relevance of that witness. …
We were not taken to any part of the transcript to indicate that the mother later renewed her application to call the husband’s mother. In any event, it will be seen that his Honour was merely carrying out the statutory obligation imposed by Division 12A of Part VII of the Family Law Act 1975 (Cth) (“the Act”), which lays down the principles to be applied in conducting “child-related proceedings”. The second of those principles is that contained in s 69ZN(4) of the Act, namely that “the court is to actively direct, control and manage the conduct of the proceedings”. This must be read with s 97(3), which obliges the court to “endeavour to ensure that the proceedings are not protracted”.
Subsection 69ZQ(1) provides that in giving effect to the principles in Division 12A, the court must “decide which of the issues in the proceedings require full investigation and hearing and which may be disposed of summarily” and “in deciding whether a particular step is to be taken – consider whether the likely benefits of taking the step justify the cost of taking it”. Furthermore, s 69ZX(1)(b) provides that in giving effect to the Division 12A principles, “the court may … give directions or make orders about who is to give evidence in relation to each remaining issue” and s 69ZX(2)(j) makes clear that the court may give directions or make orders “limiting the number of witnesses who are to give evidence in the proceedings”.
In complying with his obligation to honour the Division 12A principles, the trial judge no doubt had in mind the inordinate amount of time that had already been devoted to this litigation, and was keeping firmly in mind that the issue remaining to be decided was a discrete one. It would have been apparent to his Honour, as it is to us, that the mother was hell-bent on revisiting the primary issue which had already been resolved by the first trial. His Honour would have erred gravely if he had permitted her to pursue this course.
The mother also submitted that it was the father’s fault that the proceedings had become bifurcated; that as a result, there was a duplication of “paperwork” which would not otherwise have occurred if the property and parenting matters had been considered together; and that not all of the applications she filed had related to the parenting issue. While it is true that the proceedings became bifurcated, and that some of the applications the mother made related to financial matters, this does not undermine the trial judge’s conclusion at [599] of the reasons following the second trial that, viewed in the most favourable light, the applications “still fall into the mire of repetitive, unmeritorious applications, which were … utterly unnecessary”.
In our view, the most telling statement supporting the injunction limiting the mother’s applications about parenting issues came from the mother herself. In her application for special leave to appeal to the High Court she criticised the reasoning of Thackray J, who had dismissed her application for leave to appeal out of time against the orders following the first trial, by saying, “Para 20 of the Chief Justice’s [sic] reasoning fails to recognize that this case is going to be litigated perpetually unless justice is done”.
The mother said her statement may not have been “as eloquently put as it could have been”, but argued that the “litigation could have long well stopped if somebody had addressed many of the issues” (transcript, 29 October 2015, pp 151–152). The issues had, of course, all been addressed, albeit not to the mother’s satisfaction. She conceded that, in her view, “justice” would only be “done” if the child was removed from the father. In such circumstances, the trial judge was not only justified but perhaps compelled to impose some limit on proceedings that had taken so much time and had been ruinously expensive.
Any doubt we might have had about the necessity for a limit being placed on making further applications was removed when the mother said this when she applied to us to provide further evidence (transcript, 12 April 2016, p 41):
Obviously the usual law, as I understand it, is that the public interest is served by finality in proceedings, as a general rule. It’s my understanding in exceptional cases – and I submit that this is one of those exceptional cases – that that just does not apply.
For these reasons, this appeal will be dismissed.
Appeal WA 4 of 2014 – The costs appeal
On 21 January 2014, Moncrieff J delivered judgment concerning the costs of the first trial. His Honour’s decision was made on the basis of written submissions, including those of the mother which were filed late, even after extensions of time had been given.
The Independent Children’s Lawyer successfully sought costs of $56,082. The father sought $277,327, which was said to equate to 60 per cent of his actual costs, but his Honour ordered the mother to pay a somewhat lesser amount on the basis that her total obligation for costs should be capped at $300,000.
In support of his costs application, the father relied on s 117AB of the Act, which applied to these proceedings since they were instituted prior to the 2011 repeal of that provision. As his Honour found, he was obliged by s 117AB to make an order for costs if he concluded that a party had “knowingly made a false allegation or statement in the proceedings”. In opposing the application, the mother insisted that her case was based on concern for the child’s wellbeing.
After observing that the element of “knowingly” required him to be satisfied that a party has lied, Moncrieff J accepted that s 117AB was enlivened, since he had found following the first trial that the mother was “a singularly unimpressive witness who was willing to mislead the court and fabricate evidence” (at [174]). For example, his Honour had made this finding:
358On balance I am satisfied that the mother utilised the material that she had researched and the books written by Stahl which she had ordered to assist her in the manufacture of a case against the father for whilst the texts and articles refer to the difficulties and indicators to be aware of in child custody evaluations they can also be used as a script or formula for the manufacture of false allegations. I have little doubt that it is within the mother’s intellectual capacity to do so and that Dr [M] became an unwitting victim of the mother’s manipulative behaviour.
Although his Honour found that s 117AB did not apply to the costs of an Independent Children’s Lawyer, he considered that the mother’s conduct as a litigant also justified an order for costs in favour of the ICL.
In arriving at his decision, his Honour considered the criteria in s 117(2A) of the Act, and noted the mother’s concession that she was wholly unsuccessful.
His Honour also considered authorities in relation to indemnity costs, before concluding:
97Overall I am satisfied that the conduct of the mother in these proceedings warrants an order for indemnity costs. It is difficult to conceive of a more extraordinary set of circumstances in a parenting case…
98The mother was willing to abuse the process of the court in her relentless pursuit of her desire to limit his involvement, if not entirely exclude, [the child] in and from the father’s life and the court and its processes became her tool to achieve that end. Further, in the utilisation of that tool the mother abused the processes of the court in the failure of her obligations as a litigant and in her attempts to manipulate evidence and witnesses, to lie, actively mislead the court and challenge its authority and the proper use of its processes.
99I am satisfied that I should make orders effectively on an indemnity basis, however I propose to limit the extent of the orders to the sum secured…
100 Whilst I acknowledge that my proposed order represents a “discount” on the father’s claim, given the reliance by Legal Aid upon State funding, the significant limitations that are placed upon State funding of Legal Aid and the increasing demands upon that limited funding, there is no doubt that the efforts of the independent children’s lawyer in these proceedings significantly assisted the court and supplemented the father in the proper conduct of this case. …
The mother did not take issue with any of the statements of legal principle upon which his Honour relied. She did argue, however, that it had been an abuse of process for the father to seek costs against her. In advancing this argument, she submitted that the father had “knowingly withheld his mental health issues” (transcript, 29 October 2015, p 146), but this raises the same issue we have already dealt with in disposing of the further evidence application.
A number of the mother’s other arguments were directed to alleged errors in the findings in the parenting matter. These arguments cannot assist now that her challenges against the outcome of both the first and second trials have failed. In particular, it is important to recognise that the finding about the mother “knowingly” giving false evidence was a central element of his Honour’s reasoning in his judgment following the first trial, since he found that her allegations were constructs designed to “destroy the possibility of [the child] having a relationship with his father” (at [849]). That finding cannot be impeached in light of the decision of the High Court. In any event, we are persuaded that it was well open to his Honour to make the findings he did in rejecting the suggestion that the mother’s concerns were genuinely held.
We also reject the mother’s argument that the trial judge lacked the expertise to make a finding that her allegations had been made knowing they were false. That issue was a question of fact to be determined by the trial judge in the same way as all other findings of fact. By its very nature, this type of finding is not one that can be the subject of conclusive proof, but is one that can be made by reference to the balance of probabilities, which is the relevant standard.
The mother also sought to persuade us that the costs order had been made on the basis of perjured information concerning the father’s income, but we observe that his Honour made no finding that the information provided by the father was correct and instead said only:
49I accept that the father’s financial circumstances are more complex and whilst I can make no definitive finding I would observe that it is more likely that he has a greater depth of resources than the mother.
We find no error in the trial judge having proceeded on the basis that it was “more likely” that the father was in the stronger financial position. His Honour was not required to undertake a detailed analysis of the circumstances of both parties. Indeed, his Honour recorded a submission by the mother to this effect:
53 The mother has dedicated a significant portion of her submissions and particularly the annexures thereto to her financial circumstances. She quite properly submits, with reference to Browne v Green (2002) FLC 93-115, that in having “regard to” the financial circumstances of each of the parties the court is not required to undertake a close examination of the minutia of each parties’ circumstances.
The mother also complained that the trial judge had not properly taken her financial position into account and submitted that had he done so, he would have appreciated that once she paid her debts “there was, effectively, nothing left” for her to meet the costs order (transcript, 29 October 2015, p 149). The mother did not, however, dispute that she had failed to comply with an order to provide a current financial statement. Instead, she blamed her lawyers for the absence of this document, albeit it transpired that the financial statement she said she had provided to them was unsworn and related to her position prior to the sale of the Town H property.
The trial judge commented on the mother’s failure to provide a financial statement, noting at [64] that it “would have been of assistance” in dealing with submissions concerning her impecuniosity, and further noting at [69] that he had been
denied the ability to determine exactly what the mother’s financial circumstances are by her failure to provide information that would assist in drawing any such conclusion in a meaningful, concise and currently relevant state.
His Honour nevertheless dealt with what information the mother had provided concerning her situation, and in doing so recorded that there was $300,000 still available from the sale of her Town H property. His Honour also set out in detail what the evidence disclosed had happened to the balance of the proceeds, and the mother does not assert error in those findings.
The possibility that the mother would be left with “nothing” would seemingly not have made any difference to his Honour’s view about the allocation of responsibility for legal costs, since he found at [67], by reference to authority, that “a party’s impecunious circumstances or apparent inability to pay costs are not a bar to the making of an order for costs”. We also reiterate that whilst his Honour found at [99] that he “should make orders on an indemnity basis”, he elected to cap the amount at $300,000. Although his Honour did not expressly say so, this lenience to the mother must have been related to acceptance of the difficulty the mother would have in paying more than the amount held in trust.
The mother submitted that his Honour should have taken into account that while her own lawyers may not always have filed documents on her behalf on time, she herself had routinely done so when she was self-represented. We were not taken to the record to indicate that this was a matter that his Honour had been asked to take into account. In any event, the trial judge’s reasons do not reveal that late filing of documents was a matter that impacted on the costs outcome. The only reference in the reasons to late filing of documents related to the mother’s costs submissions, and this was not held against the mother, since they were read and considered.
The mother also submitted in effect that the trial judge erred by taking into account her failure to disclose documents in circumstances where “the majority” of the non-disclosure was the fault of her “counsel” (transcript, 29 October 2015, p 161). The mother cannot escape responsibility for the actions of advisers she chooses to employ, even if there was evidence to support her assertions against them.
The mother further submitted that the trial judge had erred because he failed to accept her submission that if a costs order was made then payment should be deferred until the property proceedings were concluded “because there is a possibility that the [mother] would be seeking some financial entitlements at the property proceedings and the financial circumstances of the parties may change hereafter”.
His Honour did not refer to that submission in his reasons; however, the mother’s costs submissions were exceedingly lengthy and it would not be expected that a trial judge would refer to all of them. Furthermore, the submission stood for consideration in light of the fact that his Honour had already made an order requiring $300,000 from the proceeds of sale of the Town H home to be held in a trust account. That order was made on the same day as the directions were made for the filing of costs submissions. Nothing that was advanced by the mother to the trial judge or to us explained why there was any warrant for delay in the father and Legal Aid WA receiving the costs awarded in their favour when the money was immediately available in a trust account seemingly established for that purpose.
The mother also submitted that the trial judge failed to take into account sufficiently the fact that she was a self-represented litigant (although she had been represented for about the first week of the first trial, until she dismissed her lawyer). This argument must be rejected since his Honour had proper regard for her disadvantage as a self-represented litigant. In fact, the only one of the father’s submissions relating to costs which his Honour expressly rejected was the one complaining about the trial judge having “to spend significant time explaining to the [mother] procedural aspects of the proceedings, and re-directing her cross examination to relevant matters [which] would have been unnecessary had she been legally represented throughout”.
His Honour struck the right balance, in our view, when he went on to say:
76 I would observe that in as much as the father cannot rely on a negative inference being drawn against the mother through her being self represented nor can the mother rely on the fact that she was self represented to excuse her failures in the proper conduct of the litigation and meeting obligations of which she was fully aware.
The mother submitted that the trial judge also failed to take into account that it was her job as a mother to protect her son, and that his Honour should have appreciated that her actions were the result of her maternal desire to achieve this when she had been “confronted with numerous documents indicating things that had happened to [the child]” (transcript, 29 October 2015, p 168). Clearly, his Honour’s findings, including those about the mother’s behaviour and motives, did not allow for the acceptance of such a proposition.
The mother also submitted that the trial judge had failed “to take into account the financial abuse that happened in this relationship” (transcript, 29 October 2015, p 174). She submitted that this had been referred to in the submissions made on her behalf to the extent that it was argued that she had been “the one making all the provisions for the child, and the [father] was contributing extremely little”. As was pointed out from the bench, this proposition, if it had been made, would have been irrelevant to a decision concerning the costs of the litigation undertaken after the breakdown of the relationship.
We should finally record that the mother submitted that the trial judge ought not to have heard the costs argument in the first place, as he had erred in refusing her application for him to recuse himself. The mother did not make her recusal application until 20 January 2014, the day before his Honour was due to hand down his costs judgment. His Honour dealt with that issue entirely appropriately on the day he delivered the costs judgment, as appears from the extract below (transcript, 21 January 2014, p 3):
HIS HONOUR: … And, Ms Willett, just before I deliver my judgment and make my orders in the costs matter, I have three forms 2 that have been filed by your client, not by your firm. One is seeking that I be disqualified from further hearing of the matter. The other is as to the release of transcripts, and the other is as to children's issues, which I listed for mention this morning.
Your client was keen, I think, that they be determined, in particular that the one seeking to have me disqualified be determined prior to delivering my costs judgment. But as you would well know, it is, of course, for the trial judge to determine the issue of costs unless there are extraordinary reasons why not – usually where that judge is retired or, sadly, in the experience of this court, deceased.
His Honour therefore did not deal with the belated disqualification application on that day and instead heard the argument on 8 April 2014, at which time it was dismissed. This order is the subject of Appeal WA 13 of 2014. However, as the basis for the application was the alleged bias of the trial judge, there is no need for us to consider the mother’s complaint further in light of what we have already said on that issue.
For these reasons the costs appeal will also be dismissed.
The July 2015 Application in an Appeal
We turn now to discuss the other Applications in an Appeal.
The mother’s application filed on 24 July 2015 was considered at a directions hearing conducted by Thackray J in August 2015. His Honour dealt with all of the application, save for a request that the costs of preparing the appeal books be shared between the mother and the father. His Honour adjourned that part of the application for hearing by us.
The costs of preparation of the appeal books should be regarded as costs in the appeal. As we propose to order the mother to pay the costs of the appeal, the remainder of this application will be dismissed.
The March 2016 Applications in an Appeal
On 11 and 30 March 2016, the mother filed two further Applications in an Appeal (the latter of which she then amended on 8 April 2016), seeking leave to adduce further evidence in the appeal.
As we have previously recorded, we allowed the mother a further hearing in order to agitate these applications. Regrettably, the mother took the opportunity to traverse at great length much of the ground that had been considered in the hearing allocated to the substantive appeals. The substance of her complaints was once again that the father had failed to provide adequate disclosure, and that the trial judge had erred in concluding that her evidence should be disbelieved. She argued that if the additional material had been available to the trial judge, he would have arrived at a different conclusion.
The mother claimed in one of her supporting affidavits that the “undiscovered evidence at the time of the Appeals included the fact that the child is not thriving in the sole care of the [father]”. In oral submissions, the mother said the evidence would establish that an order should have been made for the child to live with her. It will therefore be obvious that the documents are sought to be relied upon to support an appeal the mother wanted to pursue against the residence order, but which she is unable to pursue.
We have examined the jumble of documents which the mother provided. The vast bulk of these appear to have little or no relevance to the issues before us and largely postdate the trial. Some of them had already been the subject of the mother’s original application to adduce further evidence. One document on which the mother placed particular reliance was not attached to her affidavit at all. We observe too that, if admitted, another document the mother seeks to rely upon would tend to establish that there was a Mental Health Plan for the child as well as for the father, contrary to the mother’s original submission (see the second page of the Medicare statement for the child).
The high point of the documents from the mother’s perspective would appear to be statements made by the father in two documents to the effect that the child had been having difficulties with reading and writing, and was seeing a speech pathologist and a clinical psychologist other than Dr B. We struggle to see the relevance, since these documents could provide no basis for undermining the decision of the trial judge. His Honour anticipated when he made the residence order that the child would need professional care – indeed he ordered it. His Honour predicted that his decision “would bring pain to [the child]” (at [907]). In our view, the documents the mother seeks to have admitted would confirm that the father was dealing appropriately with the child’s education and psychological health. They do not provide any support for the mother’s claim that the child is not “thriving” in his father’s care.
The July 2016 Application in an Appeal
On 1 July 2016, the mother presented yet another application in which she sought to adduce further evidence. The application was then amended on 29 August 2016. The material relied upon is some two inches thick, on top of the one inch of material that was presented with the March 2016 applications, and the two inches of material that was the subject of the two applications filed in 2015.
The mother’s affidavit that was provided along with the amended application in August 2016 optimistically commenced by stating:
The Applicant has prepared this supplementary affidavit to include documentation that supports and is decisive in favour of the Applicant’s case for ease of reference for the Appellate Judges.
On the contrary, we conclude that it is further evidence, if such were needed, that the mother is a vexatious litigant who has inordinately occupied the time of this court and the court below. Much of the material comprises financial documents the mother has obtained in the ongoing property proceedings, which postdate the resolution of the parenting issues. Other parts of the material comprise what she called four “aid memoirs summarising an extraordinary quantity of paper”.
One of the documents attached to the mother’s affidavit which did have some relevance to the child is the report from a psychologist that the mother had intended to attach to her earlier further evidence application. The report dated 23 October 2015 states that the child was referred to the psychologist “for assessment of his cognitive development and current skill levels in the key learning areas”. Nothing in the report would establish error on the part of the trial judge or even establish with the benefit of hindsight that the child should spend time with his mother or be removed from the care of his father. For example, the report states (original emphasis):
·In many ways, [the child] is doing very well. There is nothing that he can’t be helped with or got around with appropriate strategies. I do not believe he shows any significant deficits in areas required for thinking and learning that are likely to stem specifically from his earlier family-related difficulties.
·He appears to be a lovely high – energy boy with a very strong intellect that should allow him to choose from a range of educational pathways later on. …
·Notwithstanding, [the child] is struggling with literacy … and he urgently need specialist help in this area (see RECOMMENDATIONS BELOW). …
·Finally, I formed the impression that [the child] would very much like to please his significant adults who are already offering him strong support. His profile here and his previous progress in the face of considerable difficulties, all suggest that he should be able to make the most of additional input that addresses the needs highlighted by this assessment ([Dr [B]] would also be a good resource in this regard). If this can happen, I am really optimistic that [the child] will continue to improve and do very well. …
The mother also attached to her affidavit a report from the child’s school issued in early 2016, recording what seems to be good progress and a 93 per cent attendance rate. There was also attached a “letter of commendation” by which the father was informed by the child’s teacher that the child should be commended for his “excellent attitude to schoolwork”, his “excellent participation in class activities” and his “improved performance”. His teacher commented that “[The child’s] attitude to school is a wonderful example to all. He has made wonderful improvements in both reading and writing”.
We would ordinarily be disinclined to deal with any application without providing opportunity for written submissions, if not an oral hearing. However, this application is an abuse of process. We do not propose to afford the mother the opportunity to advance further submissions than those she made in her affidavit in support of the application, nor do we intend to put the father and the Independent Children’s Lawyer to the expense of responding to it.
We propose to dismiss the application summarily.
Costs of the appeals
We took costs submissions at the conclusion of the oral argument. The father and the Independent Children’s Lawyer sought costs in the event that the mother’s appeals were dismissed. Counsel for the ICL was able to quantify her costs at $14,000, based on an hourly rate of $140.
We allowed counsel for the father to provide a memorandum of costs, which was received shortly after the hearing (although some mathematical errors were corrected in a revised schedule received on 2 November 2015). The father sought costs of $54,976, which was arrived at after his solicitors had “written off and discounted a significant amount of work”, and after his counsel had discounted her fee from over $43,000 to $7,250.
With the consent of the parties, we have read financial statements sworn in the property proceedings (the father’s filed on 24 February 2015 and the mother’s on 18 May 2015). They indicate that the father is in a far superior financial position to the mother, who claims to have an excess of expenses over her very modest income and virtually no property. However, the mother is vigorously pursuing her property claim, and we therefore assume she considers she has an entitlement worth all of the bother and expense clearly being incurred.
The mother confirmed that she had not incurred any legal costs in the appeals, although she had incurred disbursements which she said included about $15,000 associated with the preparation of the appeal books.
The mother has been wholly unsuccessful in the appeals and the associated applications. As counsel for the father pointed out, the father and the Independent Children’s Lawyer have had to contend with 83 appeal books, in addition to a plethora of other paper, the bulk of which was not referred to in the course of argument. Counsel for the ICL also complained about the haphazard way in which the books had been prepared and the time it took to locate and catalogue documents. The grounds of appeal were also amended on a number of occasions, always in a most confusing way.
While we accept that the mother seems to be in a dire financial position, and while we also accept that this may not be alleviated greatly, if at all in the property proceedings, we consider that the mother is the author of her own misfortune. We consider that the complete lack of merit in her appeals and the way in which they were conducted necessitates the making of an order for costs in favour of both the father and the Independent Children’s Lawyer.
It is within our discretion to fix the costs, which would avoid what inevitably would be a tortuous and expensive assessment process. In our view, the costs sought by the Independent Children’s Lawyer are modest and clearly appropriate. We also accept that the costs of the father have been significantly discounted, and we are of the opinion that there is no warrant for any further discount, which would only leave the father further out of pocket in defending unmeritorious and vexatious appeals and applications.
For these reasons, we propose to order that the mother pay the costs of the father and the Independent Children’s Lawyer in the sums sought. Those amounts relate only to costs incurred up to the end of the hearing in October 2015. Further costs would have been incurred in dealing with the later unmeritorious Applications in an Appeal. The mother should pay those as well.
The mother sought a delay in payment of any costs pending finalisation of the financial proceedings. Counsel for the father pointed out that a $5,000 costs order was made against the mother following her unsuccessful application for an extension of time within which to appeal the residence order, and that the enforcement of that order was delayed until the mother received her property settlement. Counsel opposed the granting of any further indulgence to the mother on the basis that there was uncertainty as to whether there would be sufficient funds from the property settlement to meet a further costs order.
As the mother does not presently appear to have the capacity to meet the costs orders, we will delay enforcement until judgment is delivered in the financial proceedings or until those proceedings are discontinued, whichever occurs first.
I certify that the preceding one hundred and fifty-three (153) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Bryant CJ, Thackray & Murphy JJ) delivered on 3 November 2016.
Associate:
Date: 3 November 2016
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