Taggart & Taggart (No 2) - [2020] FamCA 520

FAMILY COURT OF AUSTRALIA

TAGGART & TAGGART (NO. 2)

[2020] FamCA 520

FAMILY LAW – CHILDREN – Best interests – With whom a child spends time – Where a final parenting order was made in September 2016 which provided for the child to live with the father and spend time with the mother – Where the mother has retained the child on two occasions contrary to the order – Where the mother has been unable to accept the outcome of the 2016 proceedings and has continued to undermine the child’s relationship with the father and his family – Where the father now seeks that the mother be restrained from spending any time or communicating with the child – Where the mother is incapable of regulating her behaviour and has no insight into the damage she has caused the child – Where the mother presents an unacceptable risk of psychological and emotional harm to the child – Where the risk cannot be ameliorated by supervision – Where the mother will be restrained from spending any time or communicating with the child.

FAMILY LAW – PRACTICE AND PROCEDURE – Vexatious proceedings order – Where the mother has frequently instituted and conducted vexatious proceedings – Where a vexatious proceedings order is made against the mother.

Family Law Act 1975 (Cth) Pt XIB
Family Law Rules 2004 (Cth)

Baghti & Baghtiand Ors [2015] FamCAFC 71
Banks & Banks (2015) FLC 93-637
Bant & Clayton [2019] FamCAFC 198
K & Page (2007) FLC 93-344
M & M (1988) 166 CLR 69
N and S and the Separate Representative (1996) FLC 92-655
Official Trustee in Bankruptcy v Gargan (No 2) [2009] FCA 398
Pencious & Searle (2017) FLC 93-805
Potier v Attorney-General (2015) 89 NSWLR 284
State Bank of New South Wales Ltd v Stenhouse Ltd & Ors (1997) Aust Torts Reports 81-423
Taggart & Taggart [2015] FCCA 821
Taggart & Taggart [2016] FCCA 2362
Taggart & Taggart [2019] FamCA 966
Viavattene v Attorney General (NSW) [2015] NSWCA 44

APPLICANT:

Mr Taggart

RESPONDENT:

Ms Taggart

INDEPENDENT CHILDREN’S LAWYER:

Ms Geysen, TLG Law

FILE NUMBER:

BRC

10337

2014

DATE DELIVERED:

29 June 2020

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Carew J

HEARING DATE:

15 June 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms K Oakley

SOLICITOR FOR THE APPLICANT:

Norman & Kingston

FOR THE RESPONDENT:

No appearance

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms K Carmody

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

TLG Law

Final Order

All previous orders providing for Ms Taggart (“the mother”) to spend time with and / or communicate with the child, B born … 2008 (“the child”) are hereby discharged.
The mother is restrained from spending any time with the child.
The mother is restrained from communicating with the child either directly or indirectly.
Mr Taggart (“the father”) is at liberty to provide a copy of the reasons for judgment dated 9 September 2016 and 29 June 2020, and the family report of Ms K dated 6 May 2020 to the child’s counsellor and/or psychologist.
Pursuant to s 102QB(2) of the Family Law Act 1975 (Cth) (“the Act”) the mother is prohibited from instituting any proceedings relating to the child against the father under this Act in a court having jurisdiction under this Act without first obtaining leave pursuant to s 102QE of the Act.
Any outstanding application be otherwise dismissed.

NOTATION

Section 102QE of the Act provides:

Application for leave to institute proceedings

This section applies to a person (the applicant ) who is:
(a) subject to a vexatious proceedings order prohibiting the person from instituting proceedings, or proceedings of a particular type, under this Act in a court having jurisdiction under this Act; or
(b) acting in concert with another person who is subject to an order mentioned in paragraph (a).
The applicant may apply to the court for leave to institute proceedings that are subject to the order.
The applicant must file an affidavit with the application that:
(a) lists all the occasions on which the applicant has applied for leave under this section; and
(b) lists all other proceedings the applicant has instituted in any Australian court or tribunal, including proceedings instituted before the commencement of this section; and
(c) discloses all relevant facts about the application, whether supporting or adverse to the application, that are known to the applicant.
The applicant must not serve a copy of the application or affidavit on a person unless an order is made under paragraph 102QG(1)(a). If the order is made, the applicant must serve the copy in accordance with the order.

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 Taggart & Taggart 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).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 10337 of 2014

Mr Taggart

Applicant

And

Ms Taggart

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Mr Taggart (“the father”) and Ms Taggart (“the mother”) have one child together, namely, B aged 11 years. Sadly for B, his parents have been engaged in litigation about him unabated since 2014.
On 9 September 2016, a final parenting order (“the 2016 order”) was made providing for the child live with the father and spend time with the mother. The father was also granted sole parental responsibility. The mother has never accepted the outcome of the 2016 order and twice retained the child contrary to the 2016 order resulting in an order on 24 October 2018 that her time with the child be supervised. Notwithstanding the order for supervised time, the mother has only spent time with the child on one occasion at a contact centre, namely, on 15 March 2020. The mother also spent time with the child for the purposes of the updated family report on 1 April 2020.
For the reasons which follow, the mother will be restrained from spending time or communicating with the child. The mother will also be restrained from instituting any further proceedings relating to the child without first obtaining leave.

Issues

With the assistance of all parties on 31 January 2020, the following issues were identified as requiring determination at this trial:
(1)Whether the child is at an unacceptable risk of harm from the mother given her alleged negative view of the father and his family;
(2)Whether the mother will return the child to the father if she spends unsupervised time with the child;
(3)The impact on the child if an order for long term supervision is made and whether it is practical for a long term supervision order to be made;
(4)The impact on the child if he spends no time nor communicates with the mother; and
(5)Whether or not the court should make a vexatious proceedings order against the mother pursuant to s 102QB of the Family Law Act 1975 (Cth) (“the Act”).

Mother’s failure to appear

Unfortunately, the mother elected not to participate in the trial. The mother was aware of the proceedings because she was in attendance on 31 January 2020 when the trial dates were allocated. The mother also participated in a compliance hearing with the registrar on 4 June 2020 when the parties were advised that their personal attendance at court would likely be required.
On 12 June 2020 at 9.00am, an email was sent to all parties confirming that their personal attendance at court would be required and that due to the COVID-19 pandemic, safe physical distancing measures would be in place for the trial which was to occur in the largest courtroom. Parties were also advised that any witnesses could appear by telephone or video link.
At 9.27am on that same day, the mother emailed the court protesting the requirement for her to attend. The content of her email is set out below:
It is unreasonable to demand anyone to attend in person for anything that can compromise their health.
Regardless of social distancing measures put in place by the courts, I do not feel safe and will not put myself and others at risk of being exposed.
I request that this date is either moved to another time and by other means.
I will file today an objection to hold a hearing without all parties in attendance.
With a global pandemic such as COVID-19 I would expect more consideration and understanding for humans at this difficult time.
At 12.45pm on 12 June 2020, the mother was again informed that the trial would be proceeding and her personal attendance would be required. The content of the email is set out below:
Your matter remains listed for final hearing commencing on Monday, 15 June 2020 at 10:00am, all parties are required to attend in person.
If you are requesting that a final hearing be adjourned you will need to file an Application in a Case with a supporting affidavit.
It is important to obtain independent legal advice about your situation. A lawyer can help you understand your legal rights and responsibilities. They can also explain how the law applies to your case. The court is unable to provide legal advice because to do so could seriously compromise the court's ability to impartially determine a case.
The mother responded at 2.07pm and the content of her email is set out below:
I have tried calling and left a message with no response.
Being that it is Friday afternoon and there is no chance of filing an application in a case and affidavit before 4:30pm today the courts have tried to use threats and intimidation that all parties will attend in person on Monday nd (sic) this simply is not appropriate nor is it safe to do so.
This is not possible for me to attend in person due to the increased risk of being infected despite the "distance measures" placed within the court.
I will not be bullied by the court to put my life and others at risk.
This hearing is to be postponed for a later date when there is no risk of corona virus.
I am extremely annoyed with the courts and their lack of understanding, this is a serious issue and needs to be treated as such.
When the mother failed to appear on 15 June 2020, her name was called three times as is the usual practice. Counsel for the father brought to the court’s attention a series of communications between the mother and the court relevant to her non-attendance.
Expecting the court to consider what might be interpreted as an informal application by the mother to adjourn the trial in the manner she has, is not an appropriate means to seek the court’s indulgence. As the Full Court said in Buljubasic & Buljubasic:[1]
29.… I think it is appropriate to observe that in this modern day there seems to be a tendency for people to believe that it is an appropriate way to communicate with courts, or this court at least, by sending facsimile transmissions to the registrar in the belief that they will come to the attention of the trial Judge. Ordinarily speaking, that is not a proper way for any litigant to seek to communicate with the court. Whilst it is appropriate to communicate with the registry about procedural matters in that fashion, no doubt, it is not an appropriate way for a litigant, whether represented or unrepresented, to seek to communicate with the judge who is to hear the case.
30.Ordinarily speaking, if a party to proceedings, whether represented or otherwise, seeks to have an indulgence from the court in the form of an adjournment or an extension of time for doing something which has been listed to be disposed of on a particular day, the litigant has an obligation either to appear before the court in person to seek that indulgence or to send a legal representative on his or her behalf to make a proper application to the court for that relief. It is not, generally speaking, an appropriate way to seek an adjournment of proceedings which are listed for hearing before the court to send a letter, whether by facsimile or otherwise, to the registry on the morning of the hearing setting forth the request for an adjournment and stating the grounds upon which the application is made. [2]
[1] (1999) FLC 92-865.
[2](1999) FLC 92-865 at 86,221–86,222 [29]–[30].
Notwithstanding the inappropriate nature of the mother’s communication to seek an adjournment, I nevertheless considered the option of adjourning the trial. I was most conscious of the impact of a decision not to adjourn the trial, namely, that the mother would be shut out of the proceedings, the result of which, if the father was successful, would sever her relationship with the child.[3]
[3] Ibid at 86,222, [33].
I was also mindful of the Full Court’s observations in Kovacs & Graham (No 2):[4]
[4] [2017] FamCAFC 249.
85.In Taylor v Taylor (1979) 143 CLR 1 at 15-16, Mason J said that it is “prima facie the right of each party to have the proceedings heard in his or her presence and that justice to both parties required that each party should be entitled to present his or her case”.
86.However, if a party chooses not to attend proceedings of which they were aware, then they have not been denied the opportunity to be heard, as Kirby J explained in Allesch v Maunz (2000) 203 CLR 172:
38.… Having regard to the circumstances in which the initial proceedings took place in the absence of Mr Allesch (the appellant), it is worth emphasising that the principle just described does not require that the decision-maker actually hear (or receive the submissions of) the party potentially liable to be adversely affected. Sometimes, through stubbornness, confusion, misunderstanding, fear or other emotions, a party may not take advantage of the opportunity to be heard, although such opportunity is provided. Affording the opportunity is all that the law and principle require.
39.Decision-makers, including the courts, cannot generally force people to protect their own rights, to adduce evidence or other materials, to present submissions or to act rationally in their own best interests. This consideration may be especially relevant in relation to the Family Court where emotions, often engendered by the highly personal issues involved, can sometimes cloud rational thought.
40.Nor are courts obliged to delay proceedings indefinitely because one party, although proved to be on notice of the proceedings, refuses or fails to appear in person or to be represented by a lawyer or some other individual permitted to speak for them who can explain the need for an adjournment. The rights of other parties are commonly involved. In the Family Court, the rights of non-parties (especially children) may be affected. Additionally, (as this Court has itself accepted), the rights of the public in the efficient discharge by courts of their functions must be weighed against unreasonable delay in concluding litigation.
87.It is clear that a trial judge has a discretion as to whether or not to proceed in the absence of a party (McMahon and McMahon (1976) FLC 90-128 at 75,606; Buljubasic v Buljubasic (1999) FLC 92-865 at [24] and following; Barbey & Tuttle (2013) FLC 93-534 at [90] and Talbot & Talbot (2015) FLC 93-660 at [16]–[22]).
I declined to adjourn the trial for the following reasons:
a)The mother failed to file any material for the trial as required by the order made on 31 January 2020, which raises the question of what involvement she intended to have in the trial in any event;
b)The mother made no application for an adjournment and provided no evidence of any particular risk to her safety or vulnerability to infection posed by COVID-19;
c)I took judicial notice of the most recent information publically available from the Queensland government that the number of known active cases of COVID-19 in Queensland (population 5.071 million) was 5 at the time of the hearing and of those, one person was in hospital and one person was in intensive care;
d)There is no public health direction prohibiting the parties attendance at court; to the contrary, attending court proceedings is specifically permitted;
e)Persons in Queensland can currently (and could as at the first day of the trial) attend restaurants and hotels and travel on public transport in substantially greater numbers than the number of participants taking part in this trial;
f)In the circumstances of the COVID-19 pandemic, special safety measures had been put in place and the mother was advised of those procedures;
g)The interests of the child require finality to what has been a very long, protracted and repetitious parenting dispute;
h)Section 97(3) of the Act imposes an obligation on the court to endeavour to ensure that proceedings are not protracted, and r 1.04 of the Family Law Rules 2004 (Cth) (“the Rules”) expresses objectives for cases to be resolved in a just and timely manner at a cost to the parties and to the court which is reasonable in the circumstances of the case, and r 1.08 imposes an obligation upon parties to be ready for court events;
i)Undertaking this trial by the use of Microsoft Teams (a web based video platform) was not considered viable having regard to the mother being self-represented;
j)Both the father and the independent children’s lawyer (“ICL”) opposed any adjournment; and
k)The father is privately funding his legal fees for the trial.
Subsequent to my decision to proceed with the trial, evidence was tendered by the ICL which demonstrates a certain irony in relation to the mother’s position as stated in her email communications set out above, in which she berated the court for proceeding with the trial and requiring parties to attend in person. On 25 March 2020 when the mother was advised by the Children’s Contact Service (“CCS”) that the CCS was no longer prepared to supervise face to face visits between parents and children due to the COVID-19 pandemic, the mother responded in a most abusive manner to the staff at the CCS. Their offer to facilitate time between the child and the mother via a web platform (ZOOM) was refused by the mother.

Applicable legal principles

Every proposed parenting decision requires application of the relevant parts of Part VII of the Act which sets out the objects, principles and matters that must be considered when determining what parenting order is proper.[5]
[5]Family Law Act 1975 (Cth), s 65D.
A ‘parenting order’ is defined in s 64B of the Act and may deal with matters including:
a)The time a child is to spend with another person or other persons; and
b)The communication a child is to have with another person or persons.
The objects and principles of Part VII of the Act are set out in ss 60B (1) and (2) and those sections make it clear that the court is concerned with, among other things, a child’s right to be cared for by both parents when it is safe for that to occur.
In deciding whether to make a particular parenting order, the court must regard the best interests of the child as the paramount consideration (s 60CA).
The best interests of the child are determined by reference to primary considerations, namely, the benefit to the child of having a meaningful relationship with both parents and the need to protect the child from physical or psychological harm, and additional considerations including any views expressed by the child, the nature of the relationship between the child and each parent, the past involvement of each parent with the child, the likely effect of any changes, the capacity of each parent to provide for the intellectual and emotional needs of the child, any family violence involving the child or a member of the child’s family etc (s 60CC).

In considering the primary considerations the court must give greater weight to the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence (s 60CC(2A)).
Family violence is defined in s 4AB and means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family or causes the family member to be fearful. Particular examples of such behaviour include assault, repeated derogatory taunts, intentional damage or destruction of property etc.
In cases involving allegations of abuse or family violence a positive finding of abuse should not be made unless the court is satisfied on the balance of probabilities having regard to the “inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding” and proof to the reasonable satisfaction of the court “should not be produced by inexact proofs, indefinite testimony or indirect inferences”.[6] Where it is not possible to positively reject an allegation as groundless the court is required to assess and evaluate the magnitude of any risk to determine whether the risk of harm is unacceptable.[7] The components which go to make up a finding of unacceptable risk “need not each be established on the balance of probabilities. The court may reach a conclusion of unacceptable risk from the accumulation of factors, none or some only of which, are proved to that standard” although “a Judge may be cautious in coming to a finding of unacceptable risk if none, rather than some only, of the accumulation of factors considered, satisfy the standard of proof”.^[8]
[6] M & M (1988) 166 CLR 69 citing Briginshaw v Briginshaw (1938) 60 CLR 336, 362 (Dixon J).
[7] M & M (supra); N and S and the Separate Representative (1996) FLC 92-655.
[8] See Johnson & Page (2007) FLC 93-344, 81,890 [68], 81,891 [71].
The Full Court of the Family Court recently reviewed the role of the court in assessing risk in Bant & Clayton[9] and said:
38.In M v M (1988) 166 CLR 69 at 78 (“M v M”) the plurality of the High Court considered the assessment of the existence and magnitude of a risk in the context of sexual abuse of a child and said:
Efforts to define with greater precision the magnitude of the risk which will justify a court in denying a parent access to a child have resulted in a variety of formulations. … courts are striving for a greater degree of definition than the subject is capable of yielding. In devising these tests the courts have endeavoured, in their efforts to protect the child’s paramount interests, to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access. To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.
39.It is to be remembered that the concept of “unacceptable risk” referred to in M v M was within the framework of resolving “the wider issue” namely what is in the best interests of the child and to which the resolution of the existence of an “unacceptable risk” is subservient (see M v M at 76; B and B (1993) FLC 92-357).
40.The process by which a risk is identified and its magnitude measured cannot, in parenting cases, be subject to rigid mathematical or empirical assessment. As the High Court said in CDJ v VAJ (1998) 197 CLR 172 (“CDJ v VAJ”) at 218:
…Given the nature of applications for parenting orders, there must often be a real chance that the order under appeal is not in the best interests of the child. Such applications necessarily involve predictions and assumptions about the future which are not susceptible of scientific demonstration or proof. Perceptions, predictions and even intuition and guesswork can all play a part in the making of an order. …
41.As long ago as 1995, in N and S and the Separate Representative (1996) FLC 92-655 at 82,713 – 82,714, Fogarty J said of this determination:
Thus, the essential importance of the unacceptable risk question as I see it is in its direction to judges to give real and substantial consideration to the facts of the case, and to decide whether or not, and why or why not, those facts could be said to raise an unacceptable risk of harm to the child.
[9] [2019] FamCAFC 198.
The Full Court went on to stress the importance of the whole of the evidence in assessing risk and said:
51.The conclusion of the existence and magnitude of a risk was based on all of the facts and circumstances to which his Honour referred. It would not be proper to approach that task by analysing each fact or circumstance to see whether that particular fact would support the conclusion to which his Honour came, in the words of counsel for the father, to “atomise” that evidence (see Shepherd v The Queen (1990) 170 CLR 573; R v Baden-Clay (2016) 258 CLR 308). Rather, it was a conclusion formed by a consideration of all those aspects taking into account the necessary elements of prediction and assumptions about the future to which the court spoke in CDJ v VAJ.
The court is not required to make findings of fact on every factual dispute raised by the parties.[10] The paramount issue for the court is to determine what order is in the best interests of the subject child in the particular circumstances of the case and in the process of that determination the court “cannot be diverted by the supposed need to arrive at a definitive determination” on each and every factual dispute.[11]
[10]Baghti & Baghtiand Ors [2015] FamCAFC 71.
[11]M & M (1988) 166 CLR 69.
Section 60CG imposes a statutory imperative to ensure that a parenting order does not expose a person to an unacceptable risk of family violence and empowers the court to include in the order any safeguards that it considers necessary for the safety of those affected by the order.
Each parent has parental responsibility (i.e. all the powers, responsibilities and authority which, by law, parents have in relation to a child), for a child subject to any order made by the court (s 61C).
Section 61DA provides that when making a parenting order, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility. The presumption does not apply where there are reasonable grounds to believe that a parent has engaged in abuse of the child or another child who, at the time, was a member of the parent’s family or where there are reasonable grounds to believe a parent has engaged in family violence as defined in s 4AB. The presumption may be rebutted if the court is satisfied that an order for equal shared parental responsibility would not be in the child’s best interests.
Where the presumption does apply, the court is required to consider whether equal time or substantial and significant time is in the child’s best interests and reasonably practicable (s 65DAA).
Section 65DAC makes clear that an order for shared parental responsibility requires decisions about major long-term issues to be made jointly after consultation. Major long-term issues mean issues about the care, welfare and development of the child of a long-term nature and includes issues about education, religious and cultural upbringing, health, name, changes to living arrangements that make it significantly more difficult for the child to spend time with a parent (s 4).
Although I may not specifically discuss in these reasons each subparagraph of each relevant section I have considered all sections as required when making my determination.[12]
[12]Banks & Banks (2015) FLC 93-637.
I turn now to consider the issues in this matter.

Whether the child is at an unacceptable risk of harm from the mother given her alleged negative view of the father and his family

In the reasons for judgment of the trial judge in 2016,[13] the following findings were made:
a)The mother and her parents are highly negative of the father; see little value in him having a relationship with the child and have since separation been unable (if not overtly obvious) to disguise their strongly held views and feelings (at [70 g] of the reasons);
b)Words spoken by the mother to the family report writer were in complete denigration of the father and the mother strongly believes them (at [70 i]);
c)The mother and her parents had nothing positive to say about the father (at [70 k]).
[13]Taggart & Taggart [2016] FCCA 2362
In concluding that the best interests of the child would be met by living with the father, the trial judge included a number of quotes from the family report writer, who reported the mother’s request that the father spend no time with the child and that he should “get out of our lives” and “just leave us alone and go away” (at [70 d] of the reasons). The report writer assessed the mother as unwilling to support the child sustaining a relationship with the father. The mother was also reported as stating that she would “ignore any order the Court makes”. The report writer said that the mother “was willing to make regular derogatory and denigrating statements that demoralised Mr Taggart’s person, suggesting her behaviour is regular and her comments without restraint” (at [70 f]). The report writer also noted the mother was “combative and highly resistant to the interview process” and presented as “hostile and aggressive in her communication style” (at [70 i]). The trial judge noted that during the course of the trial, and in earlier case management events, he too had observed the mother act in such a way at times including calling the trial judge “a piece of crap” and similar things when she disagreed with remarks or orders made by the trial judge (at [70 i]).
On the first occasion that the mother spent time with the child after the 2016 order she took the child to the police and alleged that the child had been beaten by the father. The police did not act on the complaint. No allegation was made during the 2016 trial that the child had been beaten or that the father posed a risk of physical abuse to the child. The father submits that this allegation represented an escalation in the mother’s attempts to remove him from the child’s life.
Then in 2018 the mother twice refused to return the child to the father resulting in two recovery orders. On each occasion the child was also withheld from his school by the mother.
The mother refuses to accept that the child suffers from coeliac disease despite being provided with a medical report dated 5 April 2019 from Dr G confirming the diagnosis. When interviewed at an intake session by the CCS on 18 February 2020, the mother said she was not going to follow the request of coeliac dietary requirements as she does not believe there has been an official diagnosis for the child. The mother has conveyed her disbelief in the diagnosis to the child who described his condition to the family report writer in April 2020 as having “the devil inside me”. The family report writer recommends that the child have counselling to “assist with his fears and distress about his coeliac diagnosis and also his parents’ conflict”.
Also during the intake session on 18 February 2020, the mother was asked to list some goals that she may have for the supervised time with the child and she responded that she wanted to “prove to dickhead” (referring to the father) that she did not have to be supervised.
On 1 April 2020, the mother accused the coordinator of the CCS of being biased in favour of the father. When asked for some examples the mother said that if the father had been treated by the CCS as she had been he would have “punched” the coordinator in the face.
The mother’s behaviour at the CCS has been so appalling that they have withdrawn their services. On numerous occasions during her communications with the CCS, the mother has yelled and screamed at staff, abusing them by calling various staff members “fucking lazy”, “useless fuck heads”, “bitch”, “lunatic fuckwit”, “fucking bitch”, “fucking arsehole”, “useless fuck heads”, “fucking whore”, “wankers” etc. The mother has also made threatening comments to staff members such as “stay the fuck away from me”, “fuck off slut”, “don’t fuck with me bitch”. She screamed at one staff member “the coordinator was fucking useless, who the fuck pays you, you aren’t going to be fucking working there long, you are a stupid fucking whore”.
One particularly disgraceful episode occurred on 31 May 2020 after the CCS refused to supervise any further visits. Despite being informed that the visit had been cancelled, the mother attended the CCS premises and commenced screaming at staff to let her in. The mother pressed her finger on the reception door bell and kept it there. She then started yelling “You better bring my son out here now, I am not fucking leaving until I see my son, you lazy cunts bring me my fucking son now”. A security guard approached the mother at the door and the mother started screaming, “I’m going to put your fucking head through the door, open the fucking door now, I am not leaving until I see my son”. The mother was forcefully banging on the door. The mother was told the police had been called. The maternal grandmother encouraged the mother to leave. The mother yelled at a staff member “fucking arseholes, you have lost your job now bitch”. This episode occurred despite the mother believing that the child was present. Thankfully, he was not.
The mother has filed numerous applications seeking to reverse the living arrangements for the child. All applications have been dismissed.
Despite having the opportunity to put her case in support of continuing to spend time with the child, the mother elected not to file any material and refused to appear at the hearing before me.
Despite the limitations on the mother spending face to face time with the child, she has throughout the whole time continued to communicate with the child by telephone. The father provides the child with a phone each Wednesday and the child goes to his bedroom and calls his mother. The mother and child speak for about 30 to 40 minutes. The father describes the child after these phone calls as uncharacteristically quiet and often defiant, particularly at school the following day. The father has reported certain statements made by the child to him after communication with the mother which leads me to conclude that it is likely the mother has sought to undermine the child’s relationship with the father e.g. telling him that if he is naughty the father will reject him. The mother also told the child that his two half siblings (the father and his second wife have two young sons) are not really his brothers. Prior to the family report interviews in April 2020, the child said to the father that the mother had told him what to say.
Ms K is a consultant social worker who undertook interviews for a family report on 1 April 2020. Ms K interviewed the parents, the child, the father’s wife and the mother’s partner, Mr J, and observed the child with each of his parents and significant others.
Despite my decision on 13 December 2019[14] dismissing the mother’s application to reverse the living arrangements for the child, the mother said to Ms K that her proposal was for the child to live with her. Ms K identified the issues as she saw them, namely, “[t]he entrenched nature of the parental conflict and its impact on B’s welfare and his celiac diagnosis”.
[14]Taggart & Taggart [2019] FamCA 966.
During the interview between Ms K and the mother, Ms K observed that the mother “became increasingly defensive and combative”. By way of example, Ms K describes the difficulties that arose at the end of the interview:
…When I said that she and Mr J could leave for the day, she walked past the waiting room where [the father] was sitting. She demanded to know why he was still there. I attempted to explain that I had interviewed her twice and that I now needed to interview him for a second time. I suggested that she was welcome to stay until after I had finished seeing him if she wished. By this stage, she had convinced herself that I had made up my mind in favour of him and she became increasingly confrontative. To deal with the impasse, I decided against re-interviewing [the father] and I released everyone from the assessment.
During Ms K’s interview with the child it became apparent that he is acutely aware that he is the centre of conflict between his parents and that they hate each other.
The child told Ms K that he really wanted to live with his mother “for ever and ever. She’s really nice.” These statements are likely to be a reflection of what the child was told to say by the mother. The child also said that his mother takes him everywhere and that his mother lives with his grandparents and works as a hairdresser. It seems these comments made by the child relate to a much earlier time because the child has not spent any unsupervised time with the mother since October 2018 and according to the information provided by the mother to Ms K, the mother lives with Mr J and is unemployed.
The child also told Ms K that his mother does not believe he is coeliac. He exhibited concerns about being coeliac, suggesting it could be surgically removed. When asked about his telephone calls with his mother, the child said that he sometimes goes to his room afterwards and he wants to cry but only two or three tears come out. He said that he gets very depressed sometimes. He said he keeps thinking about whether his mother could get on better with his father so that they could like each other again.
In Ms K’s assessment the child suffers from “some level of generalised anxiety” and she opined that he may find counselling helpful to assist with his fears and distress about his coeliac diagnosis and also his parents’ conflict.
Ms K opined that the child has a “warm, comfortable and secure relationship with his father and stepmother. He was responsive to their directions and he appeared happy and relaxed in their midst. … they are a close knit family”.
The child was “delighted to see his mother. He grinned broadly for most of the time they were together. He related well to Mr J but he was absorbed with his mother’s presence. He spent the whole time sitting on her knee and lying back against her. They chatted constantly about child-focussed topics. Their manner was mutually easy, almost as though they had just seen each other yesterday”.
Ms K provides some very helpful insights into this tragic situation for the child:
132. In my opinion, [the mother’s] anger at [the father], manifest in both words and actions, has been unrelenting and entrenched. She doesn’t trust him. She sees nothing positive about him. She appears to have no insight into how her actions have led to her time with B being supervised. Indeed as she sees it, the Court is also at fault in never having listened to her concerns or B’s needs.
…
134. It is my view that her anger at [the father] has blinded her from considering B's needs both in his schooling and in his ability to maintain at least a limited relationship with her.
…
136. Her pattern of behaviour makes it difficult to see how B can ever enjoy ongoing meaningful involvement with both parents at the same time. When he has been in his mother's care, she has withheld him from his father. I have formed the view that [the father] has been a reluctant participant in these years of Court proceedings, and he laments the conclusion he has reached in seeking a no-contact Order. Nevertheless he cannot see any stability for B except by excluding [the mother] from the child's life.
137. In my opinion, this is a family where the Court is required to look for the least detrimental alternative for B.
138. This polarization has brought about a life tragedy for B. He was always primarily attached with his Mum. He adores her, and he longs to spend time with her.
139. He seems to understand that she is wrong about his celiac disease but, in my opinion, her rejection of the diagnosis has accentuated his difficulty in accepting this lifelong condition. He doesn't understand however why he cannot be with her - which is his heartfelt wish.
140. … Although he is deeply sad about not being with his mother, he is also doing well [with the father]. [The father's] family is a stable, loving unit. …
…
143. I am uncertain about a no-contact Order. There is a risk that no contact would result in B idealizing his mother further. At most however, it is my view that her time should be supervised and it should not be frequent. It will also depend on finding a Centre that would accommodate this on a long-term basis.

I accept Ms K’s opinions.
I am satisfied that the mother presents an unacceptable risk of psychological and emotional harm to the child. She is incapable of regulating her behaviour and has no insight into the damage she has caused the child, who just wants to have both parents in his life. It is a tragedy of the mother’s own making. Supervision will not ameliorate the risk. The mother is simply uncontrollable as her behaviour at the CCS amply demonstrates.

Whether the mother will return the child to the father if she spends unsupervised time with the child

The mother has twice refused to return the child to the father and, as a result, recovery orders issued and supervision of the mother’s time was imposed. The records of the CCS reflect a real concern that the mother may abduct the child. Given her past behaviour, that concern is well based.
I am in no doubt that if the mother spent unsupervised time with the child she would fail to return him to the father.

The impact on the child if an order for long term supervision is made and whether it is practical for a long term supervision order to be made

The child has endured extended periods of not spending time with the mother. Despite this, he is doing well both at home and school apart from occasions when he becomes defiant and/or depressed after telephone communication with his mother.
The child spent no time with his mother between October 2018 and March 2020. The mother refuses to accept responsibility for that situation, yet the CCS records confirm that after the parents were ordered to register with the CCS within 5 days of the order made on 24 October 2018, the father did so but the mother did not register until July 2019.
Even if supervision could protect the child, there seems no realistic prospect of supervision being able to be lifted given the mother’s persistent attempts to undermine the father, her abject hatred of him, and the risk of abduction. I must weigh the damage to the child of exposure to such damaging behaviour with the child’s desire to have a relationship with his mother. The mother is unable to regulate her behaviour, and even in circumstances where she thought the child was present her behaviour was out of control. Even if I could be satisfied that long term supervision was practical, I fail to find any “cogent reason to justify such an order”.[15] The risks of harm outweigh the benefits.
[15]Moose & Moose (2008) FLC 93-375 at [10] per May J.
In any event, the CCS has withdrawn its services and although another service has been suggested by the ICL, that service has not been informed of the mother’s appalling behaviour at the CCS. I cannot imagine that they would take the matter on even though they would be paid for their supervision. There is also the issue of who would pay for the supervision. The mother is unemployed and the father says he cannot afford to pay even half the fees given the impact of the COVID-19 pandemic on his business.

The impact on the child if he spends no time nor communicates with the mother

The family report writer raised a concern about the child idolising the mother if his relationship with her was severed. It is for that reason she recommended the continuation of supervised time but limited to several times each year. I am unable to accept that recommendation, which was adopted by the ICL, given the damaging nature of the mother’s behaviour both to the child and the threatening nature of the mother’s behaviour to those who had been engaged to supervise.
I have no doubt that the child will grieve the loss of his mother. He loves her dearly. However, this is one of those tragic cases where the child simply cannot have a relationship with both parents.
The family report writer opined that the child has a supportive and loving relationship with his father, step-mother and brothers. The father presented as a thoughtful, kind and considerate man and I accept his assurances that he will obtain professional assistance for the child to help him manage his grief.
I also intend to accede to the father’s application to cease telephone communication. This has been recommended by the family report writer. The mother cannot regulate her behaviour. She undermines the child’s relationship with the father and his other family and the child experiences feelings of depression and defiance after the communication. It is not feasible to supervise telephone calls.

Conclusion – what parenting order is proper?

As noted at the commencement of these reasons, the parents in this case have been engaged in litigation largely about their son since 2014. The mother is 36 years of age and lives with her partner, Mr J. The father is 35 years of age and lives with his wife, Ms L and their two children, M and P and the child, B.
The child has lived with the father since 2016 when a final parenting order was made. The mother’s appeal against that decision was dismissed after her failure to pursue the appeal. The mother has brought countless applications to reverse the 2016 order, all to no avail. The mother did not take up the opportunity to spend supervised time with the child and as a consequence the child did not see his mother for a lengthy period.
I have found the mother poses an unacceptable risk of harm to the child which cannot be ameliorated by supervision. Despite the child longing for a relationship with his mother, such a relationship cannot occur safely in this case. Sadly, there will be an order that the mother spend no time nor communicate with the child.

Whether or not the court should make a vexatious proceedings order against the mother pursuant to s 102QB of the Family Law Act 1975 (Cth)

Whether or not a vexatious proceedings order should be made against the mother in this case arose at the instigation of the court.
On 13 December 2019, an order was made which included the following notation:
At the directions hearing on 31 January 2020 the parties and the independent children’s lawyer should be in a position to make submissions about whether or not the Court should include as an issue for consideration at trial the prospect of a vexatious proceedings order being made against the mother pursuant to s 102QB of the Family Law Act 1975 (Cth).
On 31 January 2020, a hearing attended by all parties, trial dates were allocated and one of the issues for trial was noted to be:
(5)Whether or not the Court should make a vexatious proceedings order against the mother pursuant to s 102QB of the Family Law Act 1975 (Cth).

The statutory provisions

The statutory basis for making a ‘vexatious proceedings order’ is set out in Part XIB of the Act and can be made on the court’s own initiative or upon application by a person against whom another person has instituted or conducted vexatious proceedings (s 102QB(3)).
‘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.
(s 102Q(1))
The word ‘proceedings’ is defined in s 4 of the Act:
Proceedings means a proceeding in a court, whether between parties or not, and includes cross proceedings or an incidental proceeding in the course of or in connexion with a proceeding.
Relevantly, before making a ‘vexatious proceedings order’ the court must be satisfied that the person has frequently instituted or conducted vexatious proceedings in Australian courts or tribunals (s 102QB(1)). When considering that matter, the court may have regard to the following:
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);
including proceedings instituted (or attempted to be instituted) or conducted, and orders made, before the commencement of this section (s 102QB(6)).
Where the court is satisfied that the person has frequently instituted or conducted vexatious proceedings in Australian courts or tribunals, the court may make any or all of the following orders (s 102QB(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.
A person against whom a vexatious proceedings order may be made must be afforded an opportunity to be heard (s102QB(4)).
A ‘vexatious proceeding order’ is a final order (s 102QB(5)).

Relevant authorities

What constitutes an abuse of process?

In the often cited authority of State Bank of New South Wales Ltd v Stenhouse Ltd & Ors,[16] Giles CJ (Supreme Court of NSW Commercial Division) provides a helpful review of the authorities relating to abuse of process. In summary, a proceeding may be an abuse of process where:
a)The proceedings are unreasonably oppressive and unfair to the other party;
b)The proceedings will bring the administration of justice into disrepute; and/or
c)It is sought to re-litigate something that has already been determined in previous proceedings.
[16] (1997) Aust Torts Reports 81-423 at 64,086 - 64,089.

What does ‘frequently’ mean?

The assessment of whether vexatious proceedings have been frequently instituted or conducted is not determined solely, or even necessarily, by the number of proceedings. As the Court of Appeal, Supreme Court of NSW in Potier v Attorney-General[17] concluded, ‘frequently’ has a relatively “J threshold”[18] and “both the quality of the vexatiousness of a proceeding, and the nature of the proceeding itself, inform the assessment of frequency”.[19]
[17] (2015) 89 NSWLR 284 (“Potier”) cited with approval by the Full Court of the Family Court in Pencious & Searle (2017) FLC 93-805 at 77,693 (“Pencious & Searle”) at [73]; see also Viavattene v Attorney General(NSW) [2015] NSWCA 44.
[18]Potier (n 17) at [114].
[19] Ibid at [116].

What particular matters should be considered before making a vexatious proceedings order?

The Full Court of the Family Court in Pencious & Searle[20] cited with approval the decision of Perram J in the Federal Court of Australia in Official Trustee in Bankruptcy v Gargan (No 2),[21] in which his Honour identified some well-established principles and indicia relevant to the determination of whether or not to make a ‘vexatious proceeding order’. They are:
[20]Pencious & Searle (n 17) at 77,694 at [75].
[21] [2009] FCA 398 at [2]—[12].
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…in the commencement by the litigant of proceedings which lack reasonable grounds...
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, [‘frequently’ institutes or conducts vexatious proceedings].[22]
Eighthly, each of these notions — the want of reasonable grounds, … [and the frequent] 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.
[22] I have replaced the reference - ‘habitual and persistent’ with ‘frequently’ to reflect the term used in the Family Law Act 1975 (Cth) and the amended Supreme Court Act 1970 (NSW) which “plainly lowered the threshold condition” – per Leeming JA in Potier(n 17) at 311, [115].

Proceedings instituted or conducted by the mother

In order to determine whether the mother has frequently instituted or conducted vexatious proceedings, it is necessary to review the proceedings instituted, conducted, or pursued by her.

Applications in a Case

The mother has filed the following Applications in a Case since 2015:
(1)Application in a Case filed 17 March 2015;
(2)Application in a Case filed 2 June 2015;
(3)Application in a Case filed 20 July 2015;
(4)Application in a Case filed 4 November 2015;
(5)Application in a Case filed 9 May 2016;
(6)Application in a Case filed 27 June 2016;
(7)Application in a Case filed 2 August 2016;
(8)Application in a Case filed 2 August 2016;
(9)Application in a Case filed 31 August 2016;
(10)Application in a Case filed 31 August 2016;
(11)Application in a Case filed 27 September 2016;
(12)Application in a Case filed 14 December 2016;
(13)Application in a Case filed 19 May 2017;
(14)Application in a Case filed 2 June 2017;
(15)Application in a Case filed 5 June 2017;
(16)Application in a Case filed 6 October 2017;
(17)Application in a Case filed 1 February 2018;
(18)Application in a Case filed 17 May 2018;
(19)Application in a Case filed 18 May 2018; and
(20)Application in a Case filed 28 August 2018.

Application in a Case filed 17 March 2015

The Application in a Case filed by the mother on 17 March 2015 sought the following order:
a)That all interim orders (of an unspecified date but likely those made on 5 March 2015) be stayed until the next court hearing in May as they are not in the child’s best interests and will cause harm;
b)The magistrate acknowledge and adhere to all medical advice given by the respondent in relation to the child in regards to his health, safety and wellbeing;
c)That the applicant be assessed for suitability to be formally reintroduced to the child;
d)That the visitation between the father and child be supervised by a suitably qualified professional to ensure the child does not come to psychological and/or physical harm; and
e)That the frequency of visitations be no greater than one visit per calendar month, to be reviewed and feedback given to all parties at three months.
The interim order made on 5 March 2015 by a judge of the Federal Circuit Court of Australia (“FCC”) provided for the father to spend gradually increasing unsupervised time with the child, commencing at four hours once a week and increasing, over a period of approximately four to five weeks, to seven hours each alternate Saturday. At the interim hearing, the mother sought that the father spend supervised time only with the child.
The judge, in considering whether the father’s time should be supervised, said in the reasons for judgment dated 5 March 2015:[23]
11. The mother’s proposal is that the child spend time at a supervised venue. I explained as best I can to the mother… [that] I would need to be satisfied, even taking a high view of the mother’s evidence, that there was a risk to the child that would be ameliorated, in my view, by supervision. I am not satisfied on the mother’s evidence, as I have explained to her, that that risk exists.
…
14. … I accept the mother strongly opposes any time between the father and the child other than supervised time. I accept this may manifest in the mother not complying with my order. But the court will not be threatened and cannot be put in a position of doing other than its duty, which is to make an order which it believes on the evidence, untested as it is, in the best interests of the child.
[23]Taggart & Taggart [2015] FCCA 821 at [11], [14] per Judge Baumann (as his Honour then was).

The mother’s application was dismissed on 23 April 2015. An order was also made for the father to spend make up time with the child, the mother not having facilitated the time pursuant to the interim order made 5 March 2015.

Application in a Case filed 2 June 2015

The Application in a Case filed by the mother on 2 June 2015 sought, inter alia, a stay on all orders pending the hearing of the mother’s appeal (the mother filed a Notice of Appeal on 31 March 2015 which is discussed below) and that the Application in a Case be granted an urgent hearing.
The application was heard and dismissed by a judge of the FCC on 15 June 2015. On that day, his Honour granted the ICL leave to request to urgently relist the matter in the event that there was any failure by the mother to make the child available for his time with the father.

Application in a Case filed 20 July 2015

The Application in a Case filed by the mother on 20 July 2015 sought the following order:
a)A stay on all current orders pending the outcome of the appeal;
b)A new order be made for visitation to be reduced to 4 hours a fortnight due to the child’s mental state;
c)A new order be made that Ms L (the father’s partner) have no contact with the child including contact at a proposed interview with the child;
d)A new order be made for the father to produce evidence that he will be available to comply with any orders which states that he will spend time with the child on his own;
e)A new order that there is to be no overnight stays until such time as the child is deemed to have been assessed to be able to cope by medical professionals advice and have no negative reaction;
f)A new order be made that the father be penalised by way of a suspension should the child be placed in harm’s way such as no car seat or contact with any other persons; and
g)A new order be made for the case to be transferred to the State Courts as the Judge travels regularly to other venues throughout Australia.
The mother’s application was dismissed by a judge of the FCC on 18 September 2015 and an order was made for the father to continue to spend unsupervised time with the child, and for that time to progress to overnight time.

Application in a Case filed 4 November 2015

The Application in a Case filed by the mother on 4 November 2015 sought the following order:
a)That paragraphs 8(v) – (viii) of the order made on 18 September 2015[24] be discharged;
b)That the father be required to attend upon N Centre for consultation with the child’s treating practitioner in relation to the father learning the needs of the child and how to best manage those needs in his household; and
c)That the child spend time with the father each alternate Sunday between 9am and 5pm provided that he has first commenced attending upon N Centre.
[24] There is no paragraph 8 (v) to (viii) of the order made 18 September 2018. The mother says in her affidavit filed in support of the Application in a Case that she was seeking to cease the child’s overnight time with the father (provided for in paragraphs 9 (v) to (viii) of the order made 18 September 2018. These paragraphs provided for the father to spend unsupervised time with the child each alternate weekend from Friday 4.30pm to Sunday 5.00pm
Although no order was made specifically dismissing the application, it was dealt with by a judge of the FCC on 16 December 2016 and finalised. An order was made by consent for the child to live on a week about basis between the parents during the Christmas school holidays and the matter was also set down for a final hearing on 28 and 29 January 2016.
The trial was heard by a judge of the FCC over three days, concluding on 5 February 2016 with judgment being reserved on that day. In the period between judgment being reserved and then delivered on 9 September 2016, the mother filed several applications.

Application in a Case filed 9 May 2016

The Application in a Case filed by the mother on 9 May 2016 sought the following order:
a)Leave to reopen the trial. New evidence to be presented with supporting affidavits of Ms Taggart dated 05/05/2016, affidavit of Mr Q dated 05/05/2016; and
b)For the location of the resuming trial be transferred to the State courts.
The application was listed for hearing on 8 June 2016 and was dismissed by the trial judge for want of prosecution as the mother failed to appear. There was also no evidence that the application had been served on the father or the ICL. The judge provided the mother with liberty to re-instate her application provided such a request was made by 10 June 2016.

Application in a Case filed 27 June 2016

The Application in a Case filed by the mother on 27 June 2016 sought the following order:
a)That the trial be reopened to present further evidence not available at the time of the trial in relation to an assault to the mother;
b)That the father be made to modify his behaviour at changeover; and
c)That the father be made to use the communication book to ensure the health and safety of the child.
The application was heard by the trial judge on 6 July 2016. Leave was granted to the mother to re-open the proceedings, limited to receiving and considering evidence in relation to an incident which occurred on 29 April 2016, including an affidavit of the mother and the maternal grandfather, an affidavit of the father and his partner, and a copy of any signed statement by the mother given to the O Town police in response to the police statements taken from the father and his partner (annexed to their affidavits), provided that such statements were received by the court within 7 days of the date of the order.

Applications in a Case filed 2 August 2016

The Application in a Case filed by the mother on 2 August 2016 sought the following order:
d)That the evidence be reopened; and
e)That the father be required to sign a consent form for dental work for the child.
A further Application in a Case filed by the mother on 2 August 2016 sought the following order:
a)Reopen the trial to provide evidence that was not available at the time of the trial in regards to the assault of the mother;
b)An extension of time to obtain a copy of the statement made at the O Town Police Station; and
c)An extension of time to obtain a copy of the 000 call made.
The applications were heard by a judge of the FCC on 23 August 2016 and dismissed. Leave was granted for the parties to view subpoenaed material produced to the court by the Queensland Police Service.

Applications in a Case filed 31 August 2016

The Application in a Case filed by the mother on 31 August 2016 sought the following order:
a)An adjournment of the final orders be granted until the full subpoenaed information becomes available and presented as evidence; and
b)That the trial be reopened and the subpoenaed information be included into evidence.
A further Application in a Case filed by the mother on 31 August 2016 sought the following order:
a)That the trial be reopened to present further evidence to be heard not available at the time of the trial in relation to the assault of the mother;
b)That a subpoena be issued to the O Town police officer as a witness to provide evidence including the 000 call;
c)That the mother be granted sole parental responsibility and that the child live with the mother; and
d)That the father spend time with the child from Friday 4.30pm to Sunday 4.30pm on alternate weekends.
The trial judge considered both applications on 2 September 2016 and dismissed them. The evidence which the mother sought to adduce related to an incident which occurred on 29 April 2016. As set out above, his Honour had already, on the mother’s application, granted leave for her to adduce further evidence relating to this incident, namely, affidavits by herself, the maternal grandfather, the father and the father’s partner. His Honour did not consider that any of evidence which the mother sought to adduce by the filing of these applications assisted him in making a determination on the issues in dispute and did not consider that the evidence, if accepted, would most probably affect the outcome of the trial. His Honour also noted that it was inappropriate for further parenting orders to be made while the final judgment was reserved.
Final judgment was delivered on 9 September 2016 providing for the child to live with the father and spend alternate weekends and holidays with the mother. The mother filed a Notice of Appeal on 23 September 2016.

Application in a Case filed 27 September 2016

The Application in a Case filed by the mother on 27 September 2016 sought the following order:
a)The application be heard on an urgent basis;
b)That all ordinary timeframes for service be abridged;
c)That the order of the Federal Circuit Court dated 9 September 2016 be stayed pending appeal;
d)That pending further order:
i)The child live with the mother;
ii)The child spend time with the father from 4.30pm Friday until 4.30pm Sunday;
iii)The child spend time the first week of each school holiday period with the mother, and each alternate week thereafter;
iv)The child spend the second week of each school holiday period with the father, and each alternate week thereafter;
v)The child be returned to the mother on the Friday prior to the commencement of the school term, with the scheduled visits to recommence with the father the following weekend.
The application was heard by the trial judge on 14 October 2016 and dismissed.

Application in a Case filed 14 December 2016

The Application in a Case filed by the mother on 14 December 2016 sought the following order:
a)An urgent hearing;
b)That the final parenting order made on 9 September 2016 be discharged due to multiple contraventions;
c)That a recovery order be granted for the mother in line with the order dated 16 December 2015. Order 2, (a), (b), 3, 4 and 5 as the father has withheld the child and ceased all visitation as of the 10^th December 2016 and ceasing all visitations thereafter;
d)That the child be placed in the care of the mother; and
e)Costs pertaining to the contravention application.
The application was heard on 9 February 2017 by the trial judge and dismissed.

Application in a Case filed 19 May 2017

The Application in a Case filed by the mother on 19 May 2017 sought the following order:
a)An urgent hearing for the subpoena issued to the father by the Federal Court (sic) on 6 March 2017 and served to the father on 10 March 2017 to be enforced;
b)An urgent hearing for the subpoena issued to Mr R of S College issued by the Federal Court (sic) on 6 March 2017 and served to S College on 7 March 2017 to be enforced;
c)An order that the father be instructed to provide consent for the Australian Taxation Office (ATO) to release full details of his ABN now including the investigation of the misuse of his ABN and cancellation of the ABN …. Any documents of the past 5 years, including his company T Pty Ltd ABN … ACN …;
d)Order for costs as the father has deliberately delayed the financial hearing by not providing truthful documentation and providing misleading submissions to the Courts;
e)Any other orders the court sees fit to make; and
f)A referral for the father to the appropriate authorities for consideration to be given as to whether a criminal prosecution ought to be commenced for the charge of perjury.
The application was heard on 27 July 2017 and the father was ordered to provide the mother with financial disclosure in respect of T Pty Ltd, as well as his tax returns for the years ending 30 June 2014, 2015 and 2016. Mr R of S College was ordered to appear at a subpoena hearing on 11 August 2017 to show cause why the penalties prescribed by law for failure to obey a subpoena ought not be imposed.
On 11 August 2017, Mr R of S College appeared before a judge of the FCC. Mr R was willing to comply with the subpoena but needed more information about what documents were required. The mother and Mr R were able to come to an agreement about the documents to be produced and an order was made amending the subpoena for documents as per the schedule attached to the order to be provided to the mother within 10 days, that the non-compliance with the subpoena by S College and Mr R be excused, and for the costs of complying with the subpoena and the application be reserved.

Application in a Case filed 2 June 2017

The Application in a Case filed by the mother on 2 June 2017 sought the following order:
a)An urgent hearing for the court to enforce the order made on 20 April 2017 and have the respondent produce the documents required;
b)An order by the court for the respondent to produce ordered by the court on the 20^th April 2017 for ABN … be enforced;
c)An order of enforcement for this order to be complied with as the respondent as failed to produce the affidavit within the thirty (30) days (20^th May 2017) of the order dated the 20^th April 2017;
d)The court to apply the appropriate penalties for non-compliance of the order; and
e)That costs be reserved.
The application was heard by the trial judge on 27 July 2017 and dismissed, the father having subsequently complied with the order between the date of filing the application by the mother and the date of hearing on 27 July 2017.

Application in a Case filed 5 June 2017

The Application in a Case filed by the mother on 5 June 2017 sought the following order:
a)An urgent hearing;
b)The child be removed from risk from the father’s household due to neglect and continued psychological and physical abuse;
c)The child be assessed by a child psychologist appointed by the court to assess the child’s psychological and physical health and any other orders the court deems appropriate.
The application was heard by a judge of the FCC on 5 April 2018 and dismissed.

Application in a Case filed 6 October 2017

The Application in a Case filed by the mother on 6 October 2017 sought the following order:
a)That the hearing set down for 3 November 2017 for contravention be brought forward as a matter of urgency as this matter is of a serious nature and has been before the court since December 2016; and
b)That the hearing for contravention be brought forward within 14 days of the date of this application.
Although no order was made dismissing this application, the court record reflects that it was finalised on 3 November 2017.

Application in a Case filed 1 February 2018

The Application in a Case filed by the mother on 1 February 2018 sought the following order:
a)That the hearing set down for the 12th February 2018 be postponed until such time that the Contravention Application dated 16 January 2018 has been heard and finalised; and
b)That the hearing date for the financial trial is for no longer than 6 months’ time from the date of this application.
The application was heard on 12 February 2018 by a judge of the FCC and the adjournment of the hearing that was to occur that day was granted. The judge, in giving reasons for granting the adjournment, said:
Though I do not consider that the wife has substantiated the basis of her claim for an adjournment based on the fact that the contravention application filed by her has not as yet been determined, I am not satisfied that I am able to proceed today to a fair hearing and determination on property issues in particular as to what might be a just and equitable order made in relation to property proceedings between the parties.
The parties to this marriage have been involved in litigation over many years and many orders have been made by judges of this court. There needs to be finality in relation to proceedings commenced for determination by this court. A court cannot be thwarted in its ability to make such a determination by a party failing to comply with orders which have been made and which are directed to a resolution of such matters. I consider that the wife in these proceedings has frustrated the due determination of the issues between the parties because she has failed to comply with previous orders…
The judge ordered that the mother pay to the husband’s solicitor the sum of $6,837.50 for the costs associated with the adjournment of the property trial.

Application in a Case filed 17 May 2018

The Application in a Case filed by the mother on 17 May 2018 sought the following order:
a)Urgent hearing as the child is in great danger of serious permanent health complications due to neglect from his primary carer; and
b)The hearing to be held within the next seven days.
Although no order was made dismissing this application, the court record reflects that it was finalised on 21 March 2019.

Application in a Case filed 18 May 2018

The Application in a Case filed by the mother on 18 May 2018 sought the following order:
a)That the costs order made 12 February 2018 for the amount of $6,837.50 be waived as it was unjustified; and
b)That all costs be waived for the hearing from 12th February 2018 as there was an adjournment asked for prior to the hearing for more urgent and pressing matters that needed addressing at the time.
The application was heard by a judge of the FCC and dismissed on 15 June 2018 as filing an Application in a Case was not the proper course to seek a review of the costs order and the mother was told that the proper course was for her to file an appeal against the order to the Full Court of the Family Court of Australia.

Application in a Case filed 28 August 2018

The Application in a Case filed by the mother on 28 August 2018 sought the following order:
a)An abridgement of time for the urgency of this application and the circumstances and nature of the damage or harm which may result if the order is not made;
b)That the orders dated 9 September 2016 be discharged;
c)That the current orders be immediately varied;
d)That the child’s residence be changed such that he lives with the mother;
e)That a recovery order issue to return the child to the mother’s care;
f)That the father’s time be restricted due to concerns relating to the child’s health and safety whilst in the father’s care;
g)That the child be home schooled for the remainder of the school year to allow for him to catch up as he has fallen behind due to his health condition;
h)That the child access a tutor at the father’s expense; and
i)That the child attend U State School in 2019.
This application was, by order of a judge of the FCC on 21 March 2019, to be treated as an Initiating Application for a variation to the final parenting order made on 9 September 2016. The matter was then transferred to the Family Court of Australia.
The application was listed for a discrete hearing of the Rice & Asplund[25] objection on 6 December 2019 and dismissed on 13 December 2019.[26] The mother failed to establish that there was some changed circumstance since the final parenting order dated 9 September 2016, or some factor not disclosed at the previous trial, that would have been material to the outcome, sufficient to justify a reversal of the living arrangements for the child.
[25]This is a reference to the principles outlined by the Full Court of this Court in Rice & Asplund (1979) FLC 90-725.
[26]Taggart & Taggart [2019] FamCA 966.

Application – Review Decision of Registrar filed 13 January 2017

The mother filed an Application – Review Decision of Registrar on 13 January 2017. She sought the following order:
a)Review of decision of the Registrar to not list the application filed 14 December 2016 for an urgent hearing;
b)That this application be listed for an urgent hearing;
c)All orders made by Judge Baumann on 9 September 2016 be discharged due to multiple contraventions to the order;
d)That a recovery order be granted for the mother as the father has withheld the child and ceased all visitation as of 10 December 2016;
e)That the child be placed in the care of the mother;
f)That the father is withholding the child to further harm the relationship between the mother and child; and
g)The father pay the mothers costs of the contravention application.

The application was heard on 9 February 2017 by a judge of the FCC and dismissed for want of prosecution.

Application – Contravention

The mother has filed the following Applications – Contraventions
a)Application – Contravention filed 23 December 2016 (Amended 21 June 2017 and Further Amended 12 October 2017); and
b)Application – Contravention filed 1 February 2018 (Amended 28 August 2018).

Application – Contravention filed 23 December 2016 (amended 21 June 2017 and further amended 12 October 2017)

The Application – Contravention filed by the mother on 23 December 2016 (and amended 21 June 2017 and further amended 12 October 2017) alleged that the father had, on seven occasions, contravened final parenting orders made on 9 September 2016. The contraventions alleged by the mother were as follows:
a)That the father, on 1 October 2016 at 20.23pm, contravened paragraph 2(a), (b) and (c) of an order made 9 September 2016, in that he, without reasonable excuse, failed to send the mother an email setting out his intention to change the child’s school, failed to allow the mother 21 days from the date of the email to respond with her views before any changes were made and failed to take into account the mother’s views when he made the decision to change the child’s school (count 1);
b)That the father, on 3 February 2017 at 4.30pm, contravened paragraph 4(a)(ii) of an order made 9 September 2016, in that he, without reasonable excuse, failed to deliver the child to the mother for the weekend of 3 February 2017 to 5 February 2017 (count 2);
c)That the father, on 10 December 2016 at 10.00am, contravened paragraph 5(b)(i) of an order made 9 September 2016, in that he, without reasonable excuse, failed to deliver the child to the mother for the first, third and fifth weeks of the December 2016/2017 gazetted school holidays (count 3);
d)That the father, on 19 May 2017 at 4.30pm, contravened paragraph 9(c) of an order made 9 September 2016, in that he, without reasonable excuse, failed to inform the mother of the child’s medical condition and failed to inform the mother of all treating medical practitioners for the child (count 4);
e)That the father, on or around 23 November 2016, contravened paragraph 10 of an order made 9 September 2016, in that he, without reasonable excuse, failed to authorise the child’s school to give the mother information about the child’s educational progress and other related activities (count 5);
f)That the father, on 28 September 2016, contravened paragraph 11 of an order made 9 September 2016, in that he, without reasonable excuse, failed to respect the privacy of the mother and the child during their phone calls, stood over the child repeatedly demanding he get off the phone, making the child very uncomfortable while trying to talk to the mother, and hanging up on the child mid conversation (count 6); and
g)That the father, on 4 October 2016 at 9.00am, contravened paragraph 12 of an order made 9 September 2016, in that he, without reasonable excuse, failed to enrol the child into the school set out in the order from the commencement of the final school of term of 2016 and failed to enrol the child into the school set out in the order from the commencement of the 4th term of 2017 (count 7).
The application was heard by a judge of the FCC on 3 November 2017. Counts 2, 3, 5, and 7 were found to be proven, the remaining counts were dismissed. The father was ordered to enter into a 12 month bond on the following conditions:
a)To be of good behaviour during the time that the bond is in force; and
b)To comply fully with the orders of Judge Baumann made 9 September 2016 in force in respect of the child B born … 2008 as amended or varied from time to time.
The mother was also ordered to pay the father’s costs in the sum of $1,689.00 for costs thrown away as a result of an adjournment of the contravention hearing, requested by the mother, which was to take place on 28 September 2017.

Application – Contravention filed 1 February 2018 (amended 28 August 2018)

The Application – Contravention filed by the mother on 1 February 2018 (and amended 28 August 2018) alleged that the father had, on two occasions, contravened an unspecified order. The contraventions alleged by the mother were as follows:
a)That the father, on 18 May 2017 at 4.30pm, contravened paragraph 9(b) and (c) of an unspecified order, in that he, without reasonable excuse, failed to inform the applicant mother of the child’s medical condition and has failed to inform the mother of all treating medical practitioners for the child (count 1); and
b)That the father, on 6 December 2017 at 6.14pm, contravened paragraph 11(a) of an unspecified order, in that he, without reasonable excuse, failed to respect the privacy of the mother by continually asking the child about the private life of the mother, and failed to respect the privacy of the applicant mother and child during their phone call by intercepting it and listening in/recording it throughout the call (count 2).
The application was dismissed on 4 September 2019 because the application did not comply with the Rules.

Appeals

The mother has filed the following appeals:
a)Notice of Appeal filed 31 March 2015; and
b)Notice of Appeal filed 23 September 2016.

Notice of Appeal filed 31 March 2015

The mother filed a Notice of Appeal on 31 March 2015 appealing an interim order made by a judge of the FCC on 5 March 2015. The mother sought the following order:
a)That supervised visits between the father and child occur only once a month and slowly increase as the child feels safe and secure;
b)For the case to be reheard; and
c)Exception of fees.
As best as I can discern from her Notice of Appeal, the mother submitted the following grounds of appeal:
a)That she was denied a fair hearing by the judge;
b)That his Honour failed to take into consideration her submissions relating to the risk posed to the child by the father in his unsupervised care;
c)That the judge erred by failing to recuse himself; and
d)That the judge erred by refusing her application to have the proceedings transferred to a different registry.
The appeal was treated as abandoned on 7 May 2015 as the mother failed to file a draft index to her appeal book by the due date.

Notice of Appeal filed 23 September 2016

The mother filed a Notice of Appeal on 23 September 2016 appealing the final parenting orders made on 9 September 2016.
The mother sought, broadly, that the final parenting order be set aside and that alternate orders be made providing for her and the father to have equal shared parental responsibility for the child, that until the father relocates to the Gold Coast the child live with the mother and spend time with the father each alternate weekend, and upon the father’s relocation the child live with the parents on a week-about basis.
The mother set out 21 grounds of appeal which were as follows:
a)That the Learned Trial Judge erred in failing to give any weight, or sufficient weight to the evidence of the child’s relationship with the Mother;
b)That the Learned Trial Judge erred in failing to give proper consideration to the effect the order would have on the child.
c)That the Learned Trial Judge erred in failing to give any weight, or sufficient weight to the evidence of the Mother’s commitment to maintaining a parental relationship with the child;
d)That the Learned Trial Judge erred in failing to admit into evidence, material subpoenaed by the Mother, and by failing to admit into evidence material subpoenaed by the Mother, there was a miscarriage of justice.
e)That the Learned Trial Judge erred in failing to accept the evidence of the Mother;
f)That the Learned Trial Judge erred in failing to give any weight, or sufficient weight to the evidence of the Mother;
g)That the Learned Trial Judge erred in giving too much weight to the evidence of the Father;
h)That the Learned Trial Judge erred in giving too much weight to the evidence of the Independent Children’s Lawyer;
i)That the Learned Trial Judge erred in failing to give any weight to the expressed wishes of the child;
j)That the Learned Trial Judge erred in giving too much weight to the evidence of the Family Consultant who prepared the Family Report to the Court;
k)That the Learned Trial Judge erred in failing to order the preparation of a Psychiatric Report in respect of the Mother and the Father;
l)That the Learned Trial Judge erred in failing to order the preparation of an updated Family Report;
m)That the Learned Trial Judge erred in finding it is in the best interest of the child to change the residence of the child;
n)That the Learned Trial Judge erred in finding that it is in the best interest of the child to order the Father have sole parental responsibility of the child;
o)That the Learned Trial Judge misdirected himself as to the proper approach in determining the parenting application;
p)That the Learned Trial Judge erred in the exercise of his discretion;
q)That the Learned Trial Judge erred in failing to properly exercise his discretion;
r)That the Learned Trial Judge erred in the exercise of his discretion with regard to the making of parenting orders;
s)That the Learned Trial Judge erred in the exercise of his discretion; and his discretion thereafter miscarried in the making of the parenting orders;
t)That the Learned Trial Judge erred in failing to follow the legislative pathway; and
u)That the Learned Trial Judge failed to provide proper reasons for judgment.
On 21 November 2016, the matter came before the appeals registrar who made orders for the filing of material in the appeal, including an order that the mother be responsible for the preparation of the appeal book.
The mother filed an Application in an Appeal on 20 January 2017 (Amended 10 August 2017) seeking that she be excused from providing transcripts for the hearing of the appeal.
On 25 August 2017, the matter came before the Full Court of the Family Court for hearing of the Notice of Appeal fled 23 September 2016, the Amended Application in an Appeal filed 10 August 2017, and an oral application made by the mother for an adjournment. The Full Court granted the mother’s application for an adjournment and made the following order:
1. The appeal be adjourned.
2. Until further order, the appeal not be relisted until the appellant obtains and files and serves the transcript of the proceedings before the primary judge.
3.The appellant pay the respondent’s costs thrown away in the fixed sum of $3,500.
4. The application for costs made by the Independent Children’s Lawyer be dismissed.
Thereafter, the mother took no steps either to comply with the orders of 25 August 2017 or to otherwise advance the appeal.
On 24 February 2020, the parties were notified that an order had been made by the appeals registrar in chambers listing the matter for a hearing on 17 March 2020 for the mother to show cause why the appeal should not be dismissed pursuant to r 11.06 and r 22.45 of the Rules. Directions were made for the mother and each other party to file and serve written submissions. The mother failed to file and serve any written submissions and failed to appear at the hearing before the Full Court on 17 March 2020.
On 30 March 2020, the Full Court (Ainslie-Wallace, Ryan and Tree JJ) made an order dismissing the Notice of Appeal (NOA 65 of 2016) against the final parenting order made on 9 September 2016. Their Honours also ordered that the mother pay the ICL’s costs fixed in the sum of $2,000 within 28 days.

Conclusion – should a vexatious proceedings order be made?

In support of the conclusion that a vexatious proceedings order should be made against the mother I make the following findings:
a)The mother has frequently instituted or conducted vexatious proceedings against the father;
b)Of the proceedings considered in this judgment, all bar the applications filed on 19 May 2017 and 2 June 2017 and the Application – Contravention filed 23 December 2016 (Amended 21 June 2017 and 12 October 2017) are vexatious;
c)The remaining proceedings were instituted or pursued without reasonable ground and/or were an abuse of process;
d)The mother’s relentless pursuit to reverse the 2016 order, yet failing to pursue her appeal, demonstrates a real risk that, without an order preventing her from instituting proceedings, her conduct will continue;
e)The mother fails or refuses to understand the principles of finality of litigation;
f)The cost to the other party and the ICL has no doubt been considerable;
g)Not even costs orders against the mother have stopped her; and
h)The mother’s conduct has impacted not just on the parties to this litigation but also on other litigants who have the right to expect that their cases will be heard in a timely manner. Repetitious applications, such as those instituted by the mother, all have to be heard and determined which means applications by other litigants are delayed.
I am acutely aware that a vexatious proceedings order represents a significant incursion on a litigant’s right to commence proceedings. Nevertheless, it is an appropriate order to make in the circumstances of this case. The mother will be prohibited from filing any application relating to the child in a court having jurisdiction under the Family Law Act 1975 (Cth).
A vexatious proceedings order does not preclude the mother from seeking leave pursuant to s 102QE to institute proceedings, but any such application will be considered without the other party being involved. The other party will only be involved if the court considers there might be some merit or utility in the proposed application by the mother and, in those circumstances, the mother will be ordered to serve the proposed application on the other party/s so that they may be heard in the usual way.

I certify that the preceding one hundred and fifty-four (154) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Carew delivered on 29 June 2020.

Associate:

Date: 29 June 2020