Theophane & Hunt (Final Parenting Orders)
[2014] FamCA 1038
•24 November 2014
FAMILY COURT OF AUSTRALIA
| THEOPHANE & HUNT (FINAL PARENTING ORDERS) | [2014] FamCA 1038 |
| FAMILY LAW – CHILDREN – With whom a child lives and spends time – Where father exhibits anti-social personality traits – Where Court considered the likely future impact of father’s anti-social personality traits upon the child – Where family report writer assessed the risk of emotional harm to the child as being very high – Where this aspect of the report writer’s evidence was unchallenged – Where family report writer also raised a number of concerns including those relating to the child being exposed to extensive parental conflict and the father’s complete contempt for the child’s other attachments – Where the Court accepted the family report writer’s evidence – Where Court satisfied there is a real risk of harm to the child posed by the father’s personality traits. FAMILY LAW – CHILDREN – With whom a child lives and spends time – Family violence – Where mother argued continued interaction with the father would adversely affect her parenting capacity – Where court noted such proposition is not fanciful – Where mother has previously attacked the father whilst experiencing a dissociative episode – Where father is presently committed to stand trial on six charges of rape of the mother, together with one charge of grievous bodily harm – Where interim orders previously in place – Where father has previously withheld the child from the mother’s care in breach of orders – Where father’s time that he would otherwise spend with the child has been suspended since May 2014 – Where parties agreed the matter needed to proceed to trial rather than continue to await the outcome of the father’s criminal proceedings – Where Court considered the likely effect on the mother and likely consequences of such, of continued interaction between her and the father in relation to the child – Where report writer has grave fears for the mother’s mental health if the father is allowed to remain involved in the child’s life – Where evidence that the mother suffers from post-traumatic stress disorder and anxiety – Where evidence the mother has recently experience suicide ideation and is overwhelmed by the court proceedings – Where mother is suffering from extreme fatigue – Where mother feels no end to litigation as she believes the father will appeal irrespective of the outcome – Where Court satisfied that on occasion the father engaged in non-consensual sexual intercourse with the mother – Where Court noted the father interacts with others in a controlling and dominating way – Where Court satisfied that continued interaction with the father in relation to the child will likely significantly affect the mother’s psychological health and her ability to cope. FAMILY LAW – CHILDREN – With whom a child lives and spends time – Best interests of the child - Where Court considered the likely effect on the child of any loss of the child’s relationship with the father – Where family report writer noted that the emotional risks to the child from ending time with the father now is lower than the known emotional, social and psychological harm which will significantly undermine the child’s emotional and personality development if the child were to continue to spend time with the father – Where Court noted the child has an attachment to both parents and loves them both – Where child’s primary attachment is with the mother – Where Court accepted that the child ceasing to have contact or spending any time with the father would have substantial and significant impacts on the child – Where Court considered the likely effect on the child of any loss of the child’s relationship with the mother – Where family report writer noted that such prospect would mean the child’s developmental outcomes would be undermined in every domain and that the impact upon the child of any loss of the child’s primary attachment could be cataclysmic – Where the Court accepted the family report writer’s evidence. FAMILY LAW – CHILDREN – With whom a child lives and spends time – Whether the mother presents as an unacceptable risk of harm to the child – Where father alleges the child is at risk of harm in the mother’s care due to mental issues and that any time with the mother should be supervised – Where Court considered whether the child was at any risk of harm if the child remained in the care of the mother or spent supervised time with her – Where father identified several species of risk including sexual, physical and emotional or psychological – Where mother sexually assaulted by maternal uncle as a child – Where no evidence that the child would be in the presence of the maternal uncle at all - Where Court not satisfied that there is a risk of sexual harm to the child in the mother’s care – Where mother suffers from fatigue – Where father concerned child will not be properly supervised and hence come to some physical harm – Where mother has supports in place to care for the child at the onset of dissociative episodes – Where the Court accepted there was some risk of physical harm to the child in the mother’s care but did not assess such risk to be great or unacceptable – Where father alleges a number of matters relevant to emotional harm – Where Court not persuaded that the mother would present a risk of emotional harm to the child if the child was to live with the mother or spend supervised time with her. FAMILY LAW – CHILDREN – With whom a child lives – Best interests of the child - Where father has been coaching the child in relation to statements about where the child wishes to live – Where father prioritises his needs over the child’s need – Where father has made every effort to be involved in all aspects of the child’s life – Where father has not contributed to the costs of maintaining the child for many years – Where mother has met the costs of the maintaining the child since separation – Where Court accepts the child is likely to come into conflict with the father by about the time the child turns 12 due to the father’s personality traits, such is likely to be substantially detrimental to the child – Where Court accepts that the father’s personality and his way of dealing with others precludes him from being considered on a practical level as primary carer of the child – Where father has long history of controlling and dominating behaviours – Where father has at times used the child to further conflict with the mother – Where mother has been the child’s primary carer – Where mother is the child’s primary attachment – Where father has not facilitated the child’s relationship with the mother in any meaningful sense – Where father would not facilitate the child’s relationship with the child’s half sibling or maternal grandparents in any meaningful sense – Where Court satisfied it is in the best interests of the child to live with the mother. FAMILY LAW – CHILDREN – With whom a child spends time – With whom a child communicates – Where father admitted in evidence that he will keep on going with litigation against the mother until he achieves a ‘fair’ outcome – Where ‘fair’ outcome is by the father’s concession, to have the child in his primary care – Where father appears to have no empathy for the mother – Where father has persisted in his belligerent behaviours despite having extensive opportunity to amend his conduct under previous orders – Where Court noted that the prospect of and magnitude of the prospect of worse harm being suffered by the child if the mother continues to be involved with the father, outweighs the child’s loss of relationship with her father – Where Court satisfied it is in the best interests of the child that the father spend no time with the child until the child turns 18 – Where mother accepted there should be an opportunity for the father to send the child birthday and Christmas cards or letters subject to them being vetted by her – Where such was not the recommendation of the family report writer – Where Court was however satisfied that level of communication was in the child’s best interests. FAMILY LAW – CHILDREN – Parental responsibility – Family violence - Where presumption of equal shared parental responsibility does not apply – Where Court noted that even if the presumption did apply, it would not be in the best interests of the child – Where Court noted that the only appropriate order is for parental responsibility in relation to long term issues is to be with the party who has predominant care of the child – Where Court ordered the mother have sole parental responsibility. FAMILY LAW – PRACTICE AND PROCEDURE – Vexatious proceedings - Where mother sought order pursuant to section 102QB – Where Court considered whether the father had frequently instituted or conducted vexatious proceedings in Australian courts or tribunals - Where court considered whether it is in the interest of justice that some, or all proceedings under the Family Law Act should be unable to be commenced by the father without leave first obtained – Where Court noted that it was not of the view that the father’s entire conduct in instituting proceedings or conducting them, had been vexatious – Where Court accepts that on occasions the father’s applications had merit - Where Court was satisfied that the father has on numerous occasions instigated or conducted vexatious proceedings – Where father had admitted he will continue litigation until he achieves a ‘fair’ outcome – Where Court satisfied that unless the father is restrained from litigating in relation to the child, he will likely continue to litigate vexatiously – Where Court satisfied that the father be prohibited from instituting proceedings under the Family Law Act against, or in relation to the mother or child, without leave of the court first obtained. FAMILY LAW – CHILDREN – Practice and procedure – Where standard of care in civil litigation is proof on the balance of probabilities – Where appropriate consideration of the gravity of the matter is required in determining whether or not the court is satisfied of its existence on the balance of probabilities – Where court noted requirement to give real and substantial consideration to the facts of the case. |
Family Law Act 1975 (Cth) s 60B, 60CA, 60CC, 61DA, 65DAA, 102Q, 102QB, 102QE
Evidence Act 1995 (Cth) s140
| Bayer & Imhoff [2010] FamCA 532 Theophane & Hunt [2013] FamCAFC 68 |
| APPLICANT: | Mr Theophane |
| RESPONDENT: | Ms Hunt |
| INDEPENDENT CHILDREN’S LAWYER: | Susan Gray |
| FILE NUMBER: | CSC | 1089 | of | 2007 |
| DATE DELIVERED: | 24 November 2014 |
| PLACE DELIVERED: | Cairns |
| PLACE HEARD: | Cairns |
| JUDGMENT OF: | Tree J |
| HEARING DATE: | 4, 5, 6, 7, 8, 11, 12 and 13 August 2014 |
REPRESENTATION
| THE APPLICANT: | In Person |
| COUNSEL FOR THE RESPONDENT: | Ms McMillan QC |
| SOLICITORS FOR THE RESPONDENT: COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: SOLICITORS FOR THE INDEPENDENT CHILDREN’S LAWYER: | O’Reilly Stevens Ms McArdle Susan Gray |
Orders
That all previous parenting orders in relation to the child, X Theophane (“the child”) born … 2006, be and hereby are discharged.
Parental Responsibility
That the mother have sole parental responsibility for the child, including determining:
2.1Any medical or health matter concerning the said child;
2.2Matters relating to the education of the said child, including but not limited to the choice of the child’s school;
2.3Disciplinary matters other than those of a trivial nature; and/or
2.4Matters concerning the social development and sporting activities of the said child.
Living Arrangements
That the child live with the mother.
Time and Communication with the Father
That the father be permitted to send the child one birthday card or letter, and one Christmas card or letter each year.
That the sending of the card or letter be done by;
(a)The father posting such card or letter to the Cairns Registry of the Family Court;
(b)The Registrar of the Family Court arranging for the card or letter to be sent to the mother.
That otherwise as provided in Order 4, the father’s time and communication with the child is suspended until the child attains the age of eighteen (18).
That otherwise as provided in Order 4, the father is restrained from attempting to spend time with and communicate with the child or requesting any other person to do so.
For the purposes of Order 5(b), the mother is to advise the Cairns Registry of her current postal address from time to time, and advise of any change thereto within 7 days of the change occurring.
General
That the mother continue to maintain her safety plan for receiving mental health support in conjunction with the maternal grandmother and the mother’s relevant treating professionals.
Restraints
That the father be restrained from contacting the school at which the child attends.
That the father is restrained from coming into sight of or proximity of the mother, the child, attending their residence, the child’s school or any other place the child or mother may be in attendance from time to time with any other person.
Authority
These Orders shall serve as an authority to permit the Principal and staff of the school at which the child attends to not communicate with the father.
Child Therapist
That the Independent Children's Lawyer is granted leave to provide copies of the Judgment, Orders and Family Reports to Dr LL, the Child Therapist or such other Child Therapist as nominated by the Report Writer or the Independent Children's Lawyer.
That the mother engage the child in an initial short period of therapy with a suitably qualified Child Therapist for the purpose of supporting the transition to no time with her father.
That the mother be guided by the Child Therapist when the child gets older as to when or if additional sessions are needed to update the child’s understanding of why she does not spend time with her father.
That the Report Writer and the Independent Children's Lawyer explain the Orders to the child.
That the mother is granted leave to provide a copy of the Orders, Judgment and Family Reports to any educational facility the child attends from time to time and to the Case Manager at M Mental Health Service.
That the mother is granted leave to provide copies of the Orders, Judgment and Family Reports to the Queensland Police Service with a view to seeking a Domestic Violence Protection Order for herself and the child to prevent the father from attending within the proximity of the mother and the child.
Vexatious Litigant
By way of vexatious proceedings Order:
(a)The father is prohibited from instituting proceedings under the Family Law Act 1975 (Cth) (“the Act”) against or in relation to the mother or the child without first having been granted leave to commence that proceeding pursuant to section 102QD of the Act;
(b)This vexatious proceedings order does not apply to:
(i) Any appeal from these orders, provided such appeal is filed within the time prescribed under the Family Law Rules 2004 or such other time as is permitted by Order of the Full Court;
(ii) Any Application for Stay consequent upon the filing of any such appeal.
IT IS NOTED the particular consequences arising from a vexatious proceedings order are set out in section 102QD of the Act, which provides:
(i) If a person is 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:
1.That person must not institute proceedings, or proceedings of that type, in the Court without leave of the Court under section 102QG; and
2.Another person must not, acting in concert with the person, institute proceedings, or proceedings of that type, in the Court without the leave of the Court under section QG.
(ii) If proceedings are instituted in contravention of subsection (i), the proceedings are stayed;
(iii) Without limiting subsection (ii), the Court may make:
1.An order declaring proceedings are proceedings to which subsection (ii) apply; and
2.Any other order in relation to the stayed proceedings it considers appropriate, including an order for costs.
(iv) The Court may make an order under subsection (iii) on its own initiative or on the application of any of the following:
1.The Attorney-General of the Commonwealth or of a State or Territory;
2.The appropriate Court official;
3.A person against whom another person has instituted or conducted vexatious proceedings;
4.A person who has a sufficient interest in the matter.
IT IS FURTHER NOTED that if the father or any other person acting in concert with him wishes to apply for leave to institute a proceeding or proceedings covered by this vexatious proceedings order, the father or such other person will be obliged to comply with section 102QE of the Act which provides
Section 102QE(1) This section applies to a person (the applicant) who is:
(i) 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
(ii) Acting in concert with another person which is subject to an order mentioned in paragraph (i).
Section 102QE(2) The applicant may apply to the Court for leave to institute proceedings that are subject to the order.
Section 102QE(3) the applicant must file an affidavit with the Application that:
(i) Lists all the occasions on which the applicant has applied for leave under this section; and
(ii) Lists all other proceedings the applicant has instituted in any Australian Court or Tribunal, including proceedings instituted before the commencement of this section; and
(iii) Discloses all relevant facts about the application, whether supporting or adverse to the Application, that are known to the applicant.
Section 102QE(4) 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.
AND IT IS FURTHER ORDERED THAT
Otherwise all extant Applications be dismissed and the matter be removed from the list of active pending cases.
The Independent Children's Lawyer is discharged with the thanks of the Court upon the later of the expiration of the appeal period in respect of these Orders, or the determination of any appeal that may be brought therefrom.
That the s 65L supervisor be discharged forthwith.
Pursuant to s 65DA(2) and s 62B, the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders and details of who can assist parties adjust to and comply with an Order are set out in the Fact Sheet attached hereto and these particulars are included in these Orders.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Theophane & Hunt (Final parenting orders) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT CAIRNS |
FILE NUMBER: CSC1089/2007
| Mr Theophane |
Applicant
And
| Ms Hunt |
Respondent
REASONS FOR JUDGMENT
INDEX 1
INTRODUCTION 3
THE ISSUES 3
BACKGROUND FACTS 4
The father 4
The mother 5
The relationship 6
Post-separation events 7
RELEVANT STATUTORY PROVISIONS AND LEGAL PRINCIPLES 10
The statutory regime 10
The standard of satisfaction required 11
The notion of unacceptable risk 13
“No contact” orders 15
THE FATHER’S ANTI-SOCIAL PERSONALITY TRAITS AND THEIR LIKELY FUTURE IMPACT ON THE CHILD 16
LIKELY EFFECT ON THE MOTHER, AND CONSEQUENCES OF, CONTINUED INTERACTION WITH THE FATHER IN RELATION TO THE CHILD 23
LIKELY EFFECT ON THE CHILD OF LOSS OF RELAITONSHIP WITH THE FATHER 27
LIKELY EFFECT ON THE CHILD OF LOSS OF RELATIONSHIP WITH MOTHER 30
RISK TO THE CHILD IN HER MOTHER’S CARE 31
Overview 31
Sexual Harm 31
Physical Harm 32
Emotional Harm 32
SECTION 60CC CONSIDERATIONS 34
PARENTAL RESPONSIBILTY 43
WITH WHOM SHOULD THE CHILD LIVE? 44
THE CHILD’S TIME AND COMMUNICATION WITH HER FATHER 45
OTHER PARENTING ORDERS 49
VEXATIOUS PROCEEDINGS ORDER 49
Relevant statutory provisions and legal principles 49
Has the father frequently instated or conducted vexatious proceedings in Australian Courts or Tribunals? 54
Supreme Court proceedings 54
Bankruptcy Proceedings 55
Child support review proceedings 55
Magistrates Court Domestic Violence proceedings 56
Family Court / Federal Circuit Court proceedings 57
Has the father frequently instituted or conducted vexatious proceedings? 61
Appropriate order 61
CONCLUSION 63
INTRODUCTION
These proceedings relate to the child of the parties, X Theophane (“the child”), born 2006 (and therefore presently eight years of age). As ultimately formulated, the applicant father sought orders that he have sole parental responsibility for the child, who would live with him and spend supervised weekend and school holiday time with the mother. On the other hand, by her Further Amended Response filed 24 July 2014, the mother seeks orders that she have sole parental responsibility for the child, who would live with her and spend no time, nor have any contact or communication, with the father. By the end of the trial her position had ameliorated slightly, in that she proposed that the father be permitted to send a card or letter to the child on her birthday and for Christmas, but that otherwise there be no communication. The mother’s proposed orders as finally formulated were supported by the Independent Children's Lawyer.
The mother also sought an order pursuant to s 102QB(2)(b) of the Family Law Act that the father be prohibited from instituting proceedings under the Family Law Act against, or in relation to, the mother or child, without leave of the court first obtained (excepting any appeal from this judgment and these orders). That order was opposed by the father but not opposed by the Independent Children's Lawyer.
THE ISSUES
The mother and the Independent Children's Lawyer (supported by the Family Report writer, Ms B) argued that the father’s anti-social personality traits, of themselves and without more, would preclude the father from being the primary carer of the child, although they would not, by themselves and without more, preclude him from spending time, or communicating, with her.
Rather, somewhat unusually, the mother did not seek the “no contact” orders because of any alleged direct risk of sexual, physical or emotional harm to the child, or because she genuinely believed that there was such a risk of harm, but instead because she said that any continued interaction between her and the father in relation to the child, was likely to adversely affect her to the point where she would lose her capacity to parent the child, amongst an array of other potential consequences. This is an appropriate place to record that on the history of the parties’ post-separation relationship, such a suggestion is not fanciful. In September 2011, whilst experiencing a dissociative episode, the mother attacked the father by stabbing him with a large knife. I will detail that incident and others later in these reasons.
On the other hand the father says that the child should move to his care, and only spend supervised time with the mother, because she presents an unacceptable risk of sexual, physical and emotional harm to the child. Again I will later detail the reasons advanced by the father for that contention.
As identified by the parties and relevant expert witnesses, the following are the predominant issues in these proceedings, in that their determination is likely to substantially impact upon its outcome:
(1)Does the father exhibit anti-social personality traits, and if so, what is the likely future impact of those upon the child;
(2)What is the likely effect on the mother, and likely consequences of any such effect, of continued interaction between her and the father in relation to the child;
(3)What is the likely effect on the child of any loss of her relationship with her father;
(4)What is the likely effect on the child of any loss of her relationship with her mother;
(5)What are the risks of harm to the child if she remains in her mother’s care or spends unsupervised time with her.
I will consider those issues in advance of a general traverse of the s60CC factors, and ultimately consider their impact in determining where the best interests of the child lie.
As regards the application for a vexatious proceedings order, the issues are firstly whether the father has frequently instituted or conducted vexatious proceedings in Australian courts or tribunals, and secondly, if so, whether it is in the interests of justice that some, or all, proceedings under the Family Law Act, should be unable to be commenced by him without leave first obtained.
BACKGROUND FACTS
The father
The father was born in 1966, and is therefore currently 48 years of age. He was born in Australia to Greek immigrant parents. He was educated to year 12 and told Dr K, a consultant psychiatrist whose report of 5 September 2008 in relation to the parties was tendered by the father, that he was good at school. He initially worked for three years with the Public Service, and then in a hospitality business for seven years. He later went into business. His first marriage was at the age of 23 and lasted for 17 years, with separation occurring in November 2005. At some point during that marriage, it appears as though the father became quite wealthy and moved from Melbourne to the Gold Coast. By 2005 he was living in an expensive home on the Gold Coast, and had several luxury motor vehicles and a yacht. He appeared to lead a lavish lifestyle. It was at that stage of his life that he met the mother.
The mother
The mother was born in 1978 and is therefore currently 35 years of age. She was born in Queensland, and had one brother who was two years older than her. Other than recalling that her father and mother regularly argued, and occasionally physically fought, it does not appear as though her pre-school years were remarkable.
However thereafter two matters of real significance attended her childhood. The first occurred when she was about six, when her brother was abducted and sexually assaulted. He was not returned to his parents for two days. The mother told Professor Q, a consultant psychiatrist who prepared a report in relation to her for her criminal proceedings arising from her stabbing of the father, that she remembers “everyone screaming”. No doubt the abduction of an eight year old boy would have been a source of great consternation for the family. Ultimately when he was returned to the family, the mother told Professor Q that he had a mark on his forehead, which had been placed there by his abductor as part of a threat that he was never to tell anyone what had occurred, and if he did so, he would shoot him through the head at that spot. This event caused the mother’s family to leave the town in which they lived and move to Far North Queensland, where she completed her schooling.
The second major occurrence that marred the mother’s childhood was a series of sexual assaults by her maternal uncle. She told Professor Q that she was raped three times by him, and that she believed he had raped her two female cousins as well. In her evidence before me, the maternal grandmother, Ms H, said that although there was no definite proof of any sexual assault, the broader family generally regarded the maternal uncle with suspicion, and at some stage collectively determined not to allow him unsupervised time with any children in the family.
The mother is recorded as having related to Professor Q a number of other aspects of her childhood: she appears to have told her that from an early age she was using marijuana, that she was “no good at school and hanging around with a bad group” and experienced ideas of self-harm from around the age of 18. She also said that from an early stage of her adolescence she felt fatigued.
By about age 18 the mother had commenced working in an entertainment venue, which she reported to Professor Q she loved. She was paid very well in that work, although occasionally clients would “try it on”.
Apparently as an entertainer she did some big stage shows and won a lot of prizes. She recalls that she loved the whole scene of it, and experienced this as a “happy time.” It was at this stage of her life that she met the father.
The relationship
The parties met in December 2005 when the father was 39 years of age and the mother was 27. The father had recently separated from his first wife, but had not divorced. The parties met at FF Club in Melbourne: the father was on holidays from the Gold Coast; the mother was working at the establishment.
The parties commenced a relationship virtually straight away. It was to last until 25 Sept 2007, a total of about 21 months. In January or February 2006 the parties commenced to cohabit at the father’s home on the Gold Coast and became engaged in late January. The mother fell pregnant in that month with the child, who was born in September 2006.
The initial months of the relationship appear to have been generally satisfactory, although the mother alleges that from an early stage the father forced her to have non-consensual sex with him. The allegation of non-consensual sex was a live issue in the proceedings before me, albeit in a relatively complex context. The father is presently committed to stand trial on six charges of rape of the mother, together with one charge of grievous bodily harm.[1]
[1] As I will discuss later, these parenting proceedings have had a most unusual course, designed to accommodate the resolution of those charges, and also the resolution of the mother’s charge of attempted murder of the father. In 2011, shortly after the mother attacked the father, there was a lengthy interim hearing before Benjamin J of the parties competing parenting proposals, in which cross-examination was permitted. His Honour contemplated that those interim orders might last between two and three years until the criminal proceedings involving both parties were concluded. However as I shall later discuss, the father’s proceedings have taken far longer than the parties had contemplated, and both parties ultimately agreed that it was appropriate to bring these proceedings on for trial, rather than continue to await the resolution of the father’s criminal proceedings.
Perhaps mindful of the father’s impending rape trial, neither the mother nor the Independent Children's Lawyer asked me to make an actual finding of rape, but rather only asked me to make a finding of non-consensual intercourse. I will discuss that, including the purported difference between that and rape, in due course.
After some months, plainly the parties’ relationship began to sour. Whilst the father denies that he was the perpetrator of any violent conduct, he does appear to accept that, for whatever reason, the relationship fell into difficulty.
In August 2007 the father purchased a home in Far North Queensland. The mother asserts that the parties then moved there; the father appears to contest that. Nothing turns on whether they did or not, and it is unnecessary for me to make any finding.
On 24 September 2007 there was an incident between the parties on the Gold Coast, in consequence of which the mother advised the father that she was leaving the relationship, and in fact travelled to Far North Queensland the next day. The parties have not cohabited since then.
Post-separation events
In October 2007 the father either commenced, or returned, to reside in Far North Queensland. The child was then just a little over one year of age. The father regularly saw the child during visits of about one and a half hours duration.
On 29 November 2007 the first domestic violence order was made against the father in favour of the mother, a matter which I will return to consider in greater detail a little later.
On 21 December 2007 the mother commenced proceedings in this court seeking parenting orders. On 4 March 2008 interim consent orders were made in those proceedings, which saw the child live with the mother and spend time with her father each Friday and Saturday from 12:30pm until 4:00pm, and from 8:30am until 12:30pm on Sundays.
On 15 October 2008 further interim consent orders were made, which gave the mother sole parental responsibility, but saw the child continue to live with her and to spend time with the father on various days.
Between 7 and 9 October 2009 the parties conducted a trial before Benjamin J in relation to parenting matters. On 6 November 2009 Benjamin J delivered his judgment and reasons, pursuant to which he ordered that the mother have sole parental responsibility, and that the child live with her, but spend gradually increasing time with her father.
In May 2008 the mother had commenced a relationship with Mr E, who gave evidence before me. The child of that relationship, Z, was born in 2010.
On 22 December 2010 the mother filed an Application seeking to vary the orders insofar as they dealt with the location of hand overs, to which the father responded by seeking orders that the child live with him, and spend only supervised time with the mother. On 18 March 2011 Watts J, to whom the matter had been transferred by Benjamin J, heard argument in relation to Rice & Asplund, and particularly whether there were a sufficient change of circumstances to warrant re-litigation. On 27 July 2011 Watts J delivered his Reasons for Judgment in which he concluded that there was no sufficient change in circumstances. By then, on 10 May 2011, the father had brought contravention proceedings against the mother, which on 12 August 2011 were found to be established by Federal Magistrate Coker (as his Honour then was). By further reasons delivered 19 August 2011, Coker FM ordered that the father have five weekends of make-up time.
26 August until 28 August 2011 was a weekend during which the father was to spend time with the child. The mother asserts that at changeover on 28 August he made a threat in relation to the child Z. Particularly her evidence at paragraph 177 of her affidavit filed 24 July 2014 was that the father said to her during a relevant exchange “don’t you ever tell me what to do when [the child] is my care. You just worry about the kids when they are in your care. You just worry about [Z].”
Her affidavit continued:
178. He then walked forward and stood over [Z]. I was nursing [the child X]. [Z] was standing in front of me. [The father’s] body language at that time was scary. His whole big body stood over [Z]. He said, “This Child’s going to go missing.” All I kept thinking was, he’s going to come after my boy, he’s going to steal my baby. [The father] was yelling, “You just keep an eye on [Z]. You just worry about [Z]. You’re going to lose your kids you know. You just keep an eye on the kids when they’re in your care.” I said, “Back off, back off away from my son.” [X] started screaming, “Stop, stop, stop, stop!” She was in my arms, crying. [Z] also became distressed. He was crying. [The father] said, “You’re just crazy, you’re going to lose your kids.” He walked off towards his car. At the scene, I was thinking, I’ve just got to leave with the kids. I’ve got to get away. I was worried that he was going to hurt one of them.
179. He had never said, “Your children are going to go missing” before. Previously, he had said, “You’re nuts. They’re going to take the children off you.” This time was different. His whole body language was different. He was looking around to see who was looking. He stood right over [Z]. I believe that he was going to up the ante.
On Thursday 1 September 2011 the child went into her father’s care, and returned the following day to the mother. By then the mother was very mentally unwell. It is not controversial that on the evening of 2 September 2011, at about 8:30pm or 9:00pm, she told her then husband, Mr E, that she was going for a drive. In fact she drove to the father’s unit with a knife and hid there awaiting his return. When he did so, she attacked him, and seriously injured him. She was charged with attempted murder and remanded in custody.
On 5 September 2011 Benjamin J made interim orders that the child live with the father. The following day the mother was released on bail. On 26 September 2011 Benjamin J made further interim orders for supervised time between the mother and the child, and on 30 September 2011 made further interim orders that the child live week about between the mother and father.
Between 9 and 11 November 2011 the interim hearing with cross-examination proceeded before Benjamin J. His Honour made orders on 5 December 2011 (with reasons delivered later) pursuant to which the mother was to have sole parental responsibility for the child, who would live with her. Further, after a period of progressively increasing time with the child, from 1 February 2013 the father was to spend alternate weekend time with her from after school on Friday, until 3:00pm on Sunday. His Honour also appointed a s65L supervisor, and further issued an injunction restraining both parties from commencing any parenting and/or enforcement proceedings without the leave of the court first obtained. The father appealed from that decision, which appeal was partially successful, in that the injunction restraining the parties from commencing fresh proceedings or enforcement proceedings was set aside: see Theophane & Hunt [2013] FamCAFC 68.
On 11 February 2013 the mother was sentenced to 18 months imprisonment in the Supreme Court at Cairns, albeit that she was immediately released on 18 months probation.
The mother separated from Mr E in September 2013. Both her and Mr E put the cause of the separation down to the incessant stream of litigation that both had endure in relation to the father. Shortly after that separation, the mother met her present partner, Mr V. They have formed a relationship which continued at the time of trial.
In February 2014 the father was committed to stand trial on the rape and grievous bodily harm charges.
On 11 April 2014 the child was due to go into her father’s care, pursuant to the interim orders of Benjamin J. However Cyclone Ita was bearing down upon Far North Queensland. In consultation with the s65L supervisor, the mother did not make the child available to the father as the orders required. Thereafter make up time was negotiated between the s65L supervisor and the father. That make up time was due to conclude on 28 April 2014, at which time, pursuant to the arrangement brokered by the s65L supervisor, the child was due to be returned to school. However she did not so return, and the father withheld her. He only returned her to the mother’s care after I had directed him to do so in urgent proceedings heard on 7 May 2014.
On 27 May, in the course of dealing with an Application in a Case brought by the mother, I ordered that until further order the father’s time which he would otherwise have spent with the child, be suspended, but adjourned the mother’s application for further hearing. That further hearing proceeded on 25 June 2014, with no change being ordered to the suspension of the father’s time. In the course of that hearing, the parties agreed that the matter needed to proceed to trial, rather than continuing to await the outcome of the father’s criminal proceedings. The matter was then listed for trial in the next sittings in Cairns.
RELEVANT STATUTORY PROVISIONS AND LEGAL PRINCIPLES
The statutory regime
Part VII of the Family Law Act contains the relevant statutory provisions dealing with children. Section 60B specifies the objects of Part VII, and the principles underlying those objects in the following terms:
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Section 61DA(1) of the Family Law Act provides that 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 for the child. In the event that, either because that presumption applies, or because it is otherwise in the child’s best interests that there be an order providing for equal shared parental responsibility, the court is obliged pursuant to section 65DAA(1) to then consider certain matters, including whether the child should spend equal time with each of the parents, or substantial and significant time.
However s 61DA(2) provides that the presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in either abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family) or family violence. Further, subsection 61DA(4) provides that the presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for its parents to have equal shared parental responsibility.
In this context is convenient to also advert to section 65DAC, which sets out the effect of a parenting order that provides for shared parental responsibility. By subsection (3) such an order is taken to require each of the persons subject to it to consult with the other person in relation to the decision to be made about any major long-term issue in relation to the child, and make a genuine effort to come to a joint decision about that issue. It can therefore be seen that the obligations which an order effecting equal shared parental responsibility imposes are potentially onerous.
Finally s 60CA provides that in deciding whether to make a particular parenting order, the court must regard the best interests of the child as the paramount consideration. The matters which a court must have regard to in determining the best interests of a child are set out in s 60CC.
In Mauldera & Orbel (2014) FLC 93-602 the Full Court had occasion to consider the interrelationship between s 60B and ss 60CC. At [72] the Court applied the principles enunciated in Wacando v The Commonwealth (1981) 148 CLR 1 in concluding that objects clauses, such as those contained within s 60B(1) can be used as an aid to the construction of words of legislation, but cannot be used to cut down the plain and unambiguous meaning of a provision if that meaning in its textual and contextual surroundings is clear (quoting from S v Australian Crime Commission (2005) 144 FCR 431 at [22] per Mansfield J). At [79] the Court concluded that the primary Judge could not attach greater weight to the factors referred to in s 60B than to the outcome of her s 60CC deliberations, and in doing so, her Honour had erred.
The standard of satisfaction required
Section 140 of the Evidence Act 1999 (Cth) provides as follows:
140(1) In a civil proceeding, the Court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2) Without limiting the matters that the Court may take into account in deciding whether it is so satisfied, it is to take into account:
(a) the nature of the cause of action or defence;
(b) the nature of the subject-matter of the proceedings;
(c) the gravity of the matters alleged.
In Neat Holdings Pty Ltd v Karajan & Holdings Pty Ltd (1992) 67 ALJR 170 at 170-171 the majority of the High Court stated:
The ordinary standard of proof required of a party who bears the onus in civil litigation in this country is proof on the balance of probabilities. That remains so even where the matter to be proved involves criminal conduct or fraud. On the other hand the strength of the evidence necessary to establish a fact or fact on the balance of probabilities may vary according to the nature of what it is sought to prove. Thus, authoritative statements have often been made to the effect that clear or cogent or strict proof is necessary “where so serious a matter as fraud is to be found”. Statements to that effect should not, however, be understood as directed to the standard of proof. Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a Court should not likely make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct.
Conduct intended to, or with a risk of, either emotionally or psychologically harming a child, or destroying or impairing a relationship between a child and a parent, is not, of itself and without more, necessarily criminal. Nonetheless an allegation of that kind is potentially a grave one, although whether it is so or not will depend upon the facts of individual cases. It is probably idle to seek to arrange conduct in some hierarchy of gravity; rather what s 140(2)(c) requires is that appropriate consideration is given to the gravity of the matter in question in determining whether or not the Court is satisfied of its existence on the balance of probabilities. In my view, the allegations made by the father that the mother presents a risk of sexual, physical and emotional harm to the child are of real gravity.
Further, the consequences attaching to a finding of the kind sought by the father could potentially be grave. As is demonstrated by this case itself, based upon such a fact being established, a parent could seek to use it to found an argument that the other parent’s time with the child should either be supervised for some period of time, or even permanently. Whilst on one view such a consequence may not be as grave as the consequences that flow from the proof of, for instance, criminal sexual abuse, it is nonetheless clear that the consequence of a finding that the mother presents as an unacceptable risk could be significant and have a grave aspect to it.
Therefore consistent with s 140(2), in taking into account the gravity of the parties’ allegations against each other, I propose to carefully evaluate the evidence relied upon in support of such a contended finding and be particularly vigilant to identify and place reduced weight upon “inexact proofs, indefinite testimony or indirect inferences.”[2]
[2] See K v R (1997) 22 FamLR 592 and Re W (sex abuse – standard of proof) [2004] FamCA 768 at [15].
The notion of unacceptable risk
It is useful to consider the authorities which give some guidance as to what is an unacceptable risk, and particularly the relationship of any such risk with the orders that the Court is contemplating. A useful starting point is the decision of the Full Court in N & S & The Separate Representative (1996) FLC 92-655, where in the well-known passage at 82,713-4, Fogarty J said:
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. Thus, the value of the expression is not in a magical provision of an appropriate standard, but in its direction to Judges to consider deeply where the facts of a particular case fall, and explain adequately their findings in this regard.
In M v M (1988) 166 CLR 69, the High Court had occasion to consider the approach in Family Court proceedings where there are allegations of sexual abuse of a child. At [20]-[25] the Court said as follows:
20. But it is a mistake to think that the Family Court is under the same duty to resolve in a definitive way the disputed allegation of sexual abuse as a court exercising criminal jurisdiction would be if it were trying the party for a criminal offence. Proceedings for custody or access are not disputes inter parties in the ordinary sense of that expression: Reynolds v Reynolds (1973) 47 ALJR 499; 1 ALR 318; McKee v McKee (1951) AC 352, at pp 364-365. In proceedings of that kind the court is not enforcing a parental right of custody or right to access. The court is concerned to make such an order for custody or access which will in the opinion of the court best promote and protect the interests of the child. In deciding what order it should make the court will give very great weight to the importance of maintaining parental ties, not so much because parents have a right to custody or access, but because it is prima facie in a child's interests to maintain the filial relationship with both parents: cf. J. v Lieschke[1987] HCA 4; (1987) 162 CLR 447, at pp 450, 458, 462, 463-464.
21. Viewed in this setting, the resolution of an allegation of sexual abuse against a parent is subservient and ancillary to the court's determination of what is in the best interests of the child. The Family Court's consideration of the paramount issue which it is enjoined to decide cannot be diverted by the supposed need to arrive at a definitive conclusion on the allegation of sexual abuse. The Family Court's wide-ranging discretion to decide what is in the child's best interests cannot be qualified by requiring the court to try the case as if it were no more than a contest between the parents to be decided solely by reference to the acceptance or rejection of the allegation of sexual abuse on the balance of probabilities.
22. In considering an allegation of sexual abuse, the court should not make a positive finding that the allegation is true unless the court is so satisfied according to the civil standard of proof, with due regard to the factors mentioned in Briginshaw v Briginshaw[1938] HCA 34; (1938) 60 CLR 336, at p 362. There Dixon J. said:
"The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters 'reasonable satisfaction' should not be produced by inexact proofs, indefinite testimony,
or indirect inferences."His Honour's remarks have a direct application to an allegation that a parent has sexually abused a child, an allegation which is often easy to make, but difficult to refute. It does not follow that if an allegation of sexual abuse has not been made out, according to the civil onus as stated in Briginshaw, that conclusion determines the wider issue which confronts the court when it is called upon to decide what is in the best interests of the child.
23. No doubt there will be some cases in which the court is able to come to a positive finding that the allegation is well-founded. In all but the most extraordinary cases, that finding will have a decisive impact on the order to be made respecting custody and access. There will be cases also in which the court has no hesitation in rejecting the allegation as groundless. Again, in the nature of things there will be very many cases, such as the present case, in which the court cannot confidently make a finding that sexual abuse has taken place. And there are strong practical family reasons why the court should refrain from making a positive finding that sexual abuse has actually taken place unless it is impelled by the particular circumstances of the case to do so.
24. In resolving the wider issue the court must determine whether on the evidence there is a risk of sexual abuse occurring if custody or access be granted and assessing the magnitude of that risk. After all, in deciding what is in the best interests of a child, the Family Court is frequently called upon to assess and evaluate the likelihood or possibility of events or occurrences which, if they come about, will have a detrimental impact on the child's welfare. The existence and magnitude of the risk of sexual abuse, as with other risks of harm to the welfare of a child, is a fundamental matter to be taken into account in deciding issues of custody and access. In access cases, the magnitude of the risk may be less if the order in contemplation is supervised access. Even in such a case, however, there may be a risk of disturbance to a child who is compulsorily brought into contact with a parent who has sexually abused her or whom the child believes to have sexually abused her. But that is not the issue in this case.
25. 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. The degree of risk has been described as a "risk of serious harm" (A v A [1976] VicRp 24; (1976) VR 298, at p 300), "an element of risk" or "an appreciable risk" (Marriage of M (1987) 11 Fam LR 765, at p 770 and p 771 respectively), "a real possibility" (B. v. B. (Access) (1986) FLC 91-758, at p 75,545), a "real risk" (Leveque v Leveque (1983) 54 B CLR 164, at p 167), and an "unacceptable risk" (In re G. (a minor) (1987) 1 WLR 1461, at p 1469). This imposing array indicates that the 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.
In Harridge & Harridge [2010] FamCA 445 Murphy J, having referred to N & S & The Separate Representative (supra), proceeded to adopt the following list of inquiries in relation to risk assessment:[3]
(1) What harmful outcome is potentially present in this situation?
(2) What is the probability of this outcome coming about?
(3) What risks are probable in this situation in the short, medium and long term?
(4) What are the factors that could increase or decrease the risk that is probable?
(5) What measures are available whose deployment could mitigate the risks that are probable?
[3] Taken from B Mahendra “Psychiatric Risk Assessment in Family and Child Law” (2008) 38 Family Law 569.
I gratefully adopt that passage as helpful in cases such as these in analysing the asserted risk.
“No contact” orders
Plainly it is a serious matter to order that a child neither spend time with nor communicate with a parent. Such orders properly ought be restricted to cases where that outcome is plainly mandated in the best interests of the child, and no other regime of orders is appropriate or workable. Such orders are commonly employed where the Court is satisfied that a parent poses an unacceptable risk of harm to a child, which cannot be ameliorated by supervision of time and communication between that parent and the child. The authorities germane to that situation were reviewed by the Full Court in Re Andrew (1996) FLC 92-692.
Re Andrew also discussed a further line of authorities, which upheld “no contact” orders being grounded, not upon a proved unacceptable risk of harm posed to the child by the parent, but rather where the other parent entertained a genuine, but not necessarily reasonable, belief that such a risk of harm existed. The basis for such orders was not to protect the parent from the consequences of their belief, but rather to protect the child from those consequences, where doing so was in the child’s bests interests. Thus in Russell v Close (Unreported, 25 June 1993) the Full Court held that where such parental anxiety was likely to impact adversely on that parent’s care-giving ability, the Court needed to take that into account. A recent re-statement of that principle is in Bayer & Imhoff [2010] FamCA 532 at [177].
That approach was taken one step further by the Full Court in Sedgley & Sedgley (1995) FLC 92-623, in the context of the husband who had for many years intimidated the wife, failed to return the child at end of access periods and otherwise behaved in an intimidating and bullying way with no regard to compliance with Court orders. At 82,259 the Court said:
Whilst the welfare of the child might require some continuity of contact with a non-custodial parent, the need for peace and tranquillity in the custodial parent’s household may be a more compelling need for the child.
Plainly however as adverted to by the Court in Sedgley itself, a Court would only cut the relationship between the child and parent on such a ground with considerable hesitation.
THE FATHER’S ANTI-SOCIAL PERSONALITY TRAITS AND THEIR LIKELY FUTURE IMPACT ON THE CHILD
In her first Family Report of 8 November 2011 (which was therefore part of the material before Benjamin J in the November 2011 interim hearing) Ms B said as follows under the heading “Allegation of a risk of emotional harm to [the child] by the father”:
137. There is a demonstrated history of [the father] being controlling, verbally and emotionally abusive in his adult relationships. Assessing the degree to which these traits transgress onto a parenting relationship with a child can be hard to estimate…
141. Beyond allegations of physical harm, some of [the father’s] observed personality traits (his ease of making threats against others) and preferred ways of relating to women (e.g. regular visits to gentlemen’s clubs, threats of litigation, false allegations and manipulation against his ex-partner Ms [L]) are likely to impact [the child] at a later age. The Report Writer views that the effects on his relationship with [the child] from [the father’s] preference for interacting with women upon an unequal basis may not currently be apparent because of [the child’s] young age.
…
145. In the long term, the emotional outcomes for [the child] from not being able to talk about her missing her time with her mother (and reportedly having her gifts removed), is that she will learn that her attachment to [the father] is conditional (i.e. you must love me the most, you can’t talk about your love for the other parent with me) which will promote the development of insecure adult identity.
This was a theme to which Ms B returned in her further Family Report of 5 May 2014. There, under the heading “[The father’s] personality problems and the risk of emotional and social harm to [the child]” she said as follows:
67. [The father] demonstrates a range of antisocial personality traits during interpersonal communication and behaviour. In particular, he appears to have a strong preference for using dominance, manipulation and deception in order to achieve goals and outcomes which benefit him. Adults who prefer these methods of problem solving have much lower levels of empathy which allows them to enact unequal and strongly self-serving behaviours without taxing emotions of guilt or worry. These traits do not appear to have abated since the last Family Report. A review of the history of this matter shows [the father’s] same personality problems have been observed over a long period of time. For example, in the summary judgement of Justice Benjamin on 2008, he described [the father] as “glib”, “not forthright”, “not accurate” and [the mother] as “more straightforward”. In Justice Watts summary judgement dated 27th July 2011, His Honour stated [the father] had pursued [the mother] in a “character assassination” which His Honour considered “entirely unwarranted” and “damaging”. The prospect of change for [the father] in his personality functioning is suggested to be very low. This is because of the severity of his traits, his older age and the presence of these traits across all aspects of his life (i.e. sexual relationships, parenting, employment)
68. Adults with the combination of these personality traits experience the world as deeply threatening to their personal goals and wishes. As a parent they risk isolating their children from other attachment relationships in the fear that a child’s other attachments may be at odds with their own. Typically these adults have superficial, highly changeable and exploitive adult relationships because they have such low levels of trust and do not have normal levels of empathy and genuine feeling. They express disproportionate reactivity and anger to perceived slights against their ego.
69. [The father] continues to exhibit a deep self-focus about what goals he seeks but also how he interprets [the child’s] behaviour and reports. For example, he believes [the mother] seeks to copy him because of his ideal parenting of [the child] by enrolling her in gymnastics or buying a trampoline. He reports [the child’s] clinginess and needing him as indicative of a close bond. This alleged clinginess and difficulty separating from him could not be observed during the family observation. [The mother] and other adults who have observed [the father] at changeover state that it is [the father] who clings onto [the child] which sometimes leads to distress. Certainly, [the father] could be observed to become excessively serious when saying goodbye (during the family observation) to [the child] which likely raises her anxiety.
70. [The father] is still not able to identify [the child’s] needs to feel close and secure to her other attachment relationships and consequently he would prefer to have these eliminated. For example, [the principal at [M] Primary School] confirmed that [the father] contacted them and directed that [the child] was not to be picked up from school by Mr [E] nor [Mr V]. [The father] has also informed [the child] that she is not to see or talk to them. Such actions appear more related to [the father’s] self-focused goal of preventing [the child’s] contact with other attachment relationships. If [the father] was as close to [the child] as he claims he would be aware of her bond with Mr [E] and certainly be supportive of her remaining in connection with him as the father of [Z].
71. The impact of [the father’s] self-focus is also apparent from [the child’s] statement that if she does not request equal shared care of the report writer that she will lose time with either her mother or her father because the Judge might choose just one of them. She is frightened at the prospect. This is such a specific statement of what her options are which is specific to the circumstances of her parent’s Family Law matter. It is very unlikely that she has picked up this concept from peers or television. Even if [the child] overheard adults talking about these ideas it seems less likely she would be able to present it as a succinct set of options. [The child] said her father told her and the report writer considers this the most likely explanation.
72. During the trial before Justice Benjamin in November 2011, the issue of whether or not the risk of spending time with [the father] outweighed the benefits was a frequent and significant part of cross examination. [The father] is well aware that Justice Benjamin and this report writer considered that ending time with him may be in her best interests if there was no improvement in the issues before the Court. It is the report writer’s view that [the father] has tried to anticipate all of the possible outcomes of his family law matter and instil a fear in [the child] about losing one of her parents. [The father] has tried to establish [the child] as a personal advocate for his own goals for the parenting arrangements. There is a risk to [the child] as she reaches an age where she gives opinions which are separate from her parents that [the father] is likely to dominate her ability to do this because of his preference on her supporting him.
During the course of her oral evidence before me, Ms B elaborated upon her concerns, and particularly identified that she thought the risk to the child was not an immediate one, but one which would likely arise when she was about 12. She assessed the risk of emotional harm to the child arising out of her having to deal with the father’s personality issues as very high. When pressed as to what sorts of harm might ensue, she went so far as to say that she assessed that harm as even being potentially greater than would ensue from physical or sexual abuse.
Repeatedly during the course of Ms B’s cross-examination by the father, I attempted to direct his attention to the significance of this aspect of her evidence, along with others. I explained to him that it was important, if he wished to challenge her evidence in these regards, that he do so, and explained to him the basis upon which an expert opinion such as she was proffering could be forensically attacked. However surprisingly, and notwithstanding repeated attempts to focus the father upon, amongst other things, this aspect of her evidence, no direct challenge was made to it by the father in his cross-examination of Ms B. Ultimately, her evidence in this respect is unchallenged.
That is not to say that her evidence in total was not challenged by the father, who went so far as to suggest to Ms B in cross-examination that she “hated” him, which she denied.
In the course of being questioned by Ms McArdle, counsel for the Independent Children's Lawyer, Ms B explained her own personal experience of interaction with the father. This included attempts by him to instruct her and direct her to do things, for instance to write specific sentences in her Family Report. She said that in doing so he would escalate his voice and use his body to lean in to try and influence things to a better outcome if he believed things were not going well for him. She said that if he was uncertain of whether or not the person he was dealing with was co-operating with him, he would use accusations or lies to try and destabilise and unsettle the situation. She gave an example where he said to her that they had agreed that she would attend his home on weekends in order to accommodate his convenience. She denied that there was any such agreement. She said that real effort was required to disentangle herself from his attempted dominance.
A little later in her evidence she said that in the course of her Family Report interviews, the father had explained to her that he did not appreciate her expressing any negative views about him, nor reporting any negative observations. He tried to make sure she did not include any such matters in the Family Report.
When pressed as to whether she had any other source of information as to the father’s means of dealing with parties, she referred to information that she had obtained from Ms MK, the s65L supervisor appointed under the orders of Benjamin J. Particularly she recounted the father’s frequent threats made to Ms MK to have her “sacked” as s65L, or otherwise punished by the court. There were also regular allegations of conspiracy, bias and lying made against Ms MK. Although Ms B said that she herself had received emails like that from the father, she had not done so in recent years.
Ms B also identified that she had accessed court records relating to the father’s past history of domestic violence in other relationships. She intimated that those files disclosed accusations of similar behaviours.
Further she pointed to the incident of 28 April 2014 in which the father withheld the child from returning to school. She said that would cause the child to have deep uncertainty in relation to her parenting arrangements, in part because she particularly enjoys school.
Ms B also gave evidence as to her concerns about the impact of, not only the father’s personality upon the child to date, but also her exposure to extensive parental conflict. She particularly pointed to an incident when, contrary to the arrangement between the parties that had been brokered by the s65L supervisor, a changeover was not effected by an intermediary (being a nanny). She said that on that occasion the child had acted as a “pseudo traffic cop” to the point where she later said to Ms B that “the Judge would have been proud of me” for doing what she did.
Further, she was concerned about the father attempting to implant into the child’s mind a lack of trust in relation to the mother’s present partner, and her former partner, Mr E, being her brother Z’s father. She was also concerned about attempts by the father to suggest to the child that her mother might go to jail. She said that those sorts of concerns led to the child potentially being less likely to trust the people who she was being instructed to doubt, which could make her frightened and destabilised.
Ms B also gave evidence of her own observations of an interaction, during the course of Family Report interviews, between the child and her father, which involved going Christmas shopping at Myers in Cairns. Her observation was that the father would encourage the child to make a choice of an item, but then he would progressively replace that choice with other items using a variety of techniques. She observed that the father would commence to bargain with staff members about the price of the item, and ultimately it would really be his choice rather than the child’s that prevailed. She observed that the child appeared to regard this bargaining by the father as an opportunity to disengage, which she then did.
Unlike the foregoing matters which I have discussed in relation to Ms B’s evidence, in relation to the Christmas shopping observations, the father did cross-examine her. He attempted to suggest that his behaviour was appropriate and justified, however Ms B remained steadfast in her concern about the way in which he was interacting with the child, which she said was really about his needs of appearing to be a loving father engaging with the child, and in that role interacting with the store staff, rather than any attempt to in fact meet the child’s needs.
Later in her cross-examination by Ms McArdle, Ms B identified that the child’s temperament is one such that she is very keen to please, and is compliant. She said she rarely needs discipline. She said that there would be an increase in the child’s anxiety as she grows, if she came to feel that her feelings were competing with those of the father. She said those concerns were based upon the fact that there is a powerful pattern in the father’s interactions with others, in that he uses others for his benefit and identifies ways in which others can assist him. He then uses them to achieve those needs. As a young child, the child is dependent upon her parents, which means her needs may not be in competition with those of the father. But Ms B’s evidence was that, once the child’s needs move into competition with the father’s, that will be to her significant disadvantage. Her concern was that the child may adapt by using a coping mechanism of compliance and submission. This would involve her holding on to worries by keeping them secret, which could lead to a distorted misunderstanding of her role in the family, and ultimately to unusual expressions of response e.g. punishing herself or aggressive behaviour. She said it was too early to say which one the child may choose, but at the moment Ms B was of the view that she was using internalising coping styles.
During her cross-examination by Ms McMillan QC, counsel for the mother, Ms B said that in her opinion the father had complete contempt for the child’s attachments with others other than himself, and would exploit situations (for instance any decline in the mother’s health) to try and destroy her attachments with other people, and in doing so promote her attachment with himself. She agreed with the suggestion that the father’s relationships with women were characterised by marked dysfunction, and said that his frequent attendance at gentlemen’s clubs demonstrated a preference for superficial relationships with other adults that focus upon his own needs. His difficulty in tolerating relationships involving different needs to those of his own would likely cause significant conflict with the child, and would create an environment where her personal autonomy would be reduced.
Again, none of this was challenged in cross-examination by the father of Ms B.
Ultimately the father did not seek to have me reject Ms B’s evidence in this respect for any lack of factual basis, or for any want of experience or training such as would equip her to make the statements of opinion that she did, or because there was some fault in the process by which she brought to bear her training and experience in reaching the conclusions which she did. Rather there appeared to be a theme in the father’s cross-examination of Ms B that she was prejudiced against him, and perhaps fathers generally. For instance, the father sought to challenge her evidence based upon the fact that she had worked many years ago in a Women’s Shelter. He sought – unsuccessfully – to have her accept that she had not had relevant professional experience in dealing with men, which suggestion Ms B roundly rejected.
Interestingly, there was a telling example of the father’s opportunism in seeking to exploit situations to his own personal advantage, which occurred on the second day of trial. On that day the mother became distressed, to the point where she became indisposed. There became a substantial prospect that the trial would not be able to proceed. Real questions would then have arisen as to whether the mother was in a fit state to care for the child, which the father immediately recognised. Even without there being any confirmation of any of the above, he recognised the facts presented a potential opportunity for him to re-agitate interim orders, such that the child would then go into his care. He demonstrated no concern whatsoever that I could discern about the mother’s potential indisposition, or more particularly, the likely impact that that would have upon the child. His focus was upon what he perceived to be a tactical advantage which may shortly accrue to him.
The s65L supervisor, Ms MK, also gave evidence before me. She said that over time, to her observation the father became increasingly argumentative and was attempting to use her to negotiate major changes in the parenting orders, rather than to facilitate compliance with them.
She was also particularly concerned about the changeover in September 2013 which was not facilitated by a nanny. Ultimately however her concerns about that distilled to the fact that, on that occasion unlike on other occasions when a difficulty had arisen, no attempt was made to communicate with Ms MK to try and resolve the problem, but rather the father acted on his own initiative. She was also particularly concerned that the day in question was shortly after a very important court event in relation to the father’s criminal proceedings.
Despite the somewhat personalised attack made by the father upon Ms B in cross-examination of her, I am not persuaded that she brought any bias, hatred or other partiality to the task of preparing her Family Report or giving her evidence. I was particularly impressed by her reticence, over some years, to make any firm recommendation that the child should have no contact with her father until she turned 18, and the fact that she had, on previous occasions, instead made what were, viewed from at least one perspective, largely rehabilitative recommendations.
The facts upon which she based her opinions are not in any substantial conflict. I reject any suggestion that she is not competent to express the opinions that she has done. I am satisfied that the process by which she applied her training and experience to the facts as she identified them is valid, cogent and indeed compelling. It therefore follows that I accept her evidence.
Specifically I accept that the father displays personality traits which are coercive, and which use a variety of antisocial means to achieve his desired objectives. Particularly, in doing so, he is focusing upon his own needs and not others. Where his needs in a relationship conflict with those of the other party or parties, he does not appreciate those other needs. He is entirely focused upon meeting and satisfying his own goals, and satisfying his own needs.
I also accept that whilst, in the context of a young child, there may be some limited adverse consequences of such a relationship (for instance the internalising coping mechanism identified by Ms B) those concerns will become far stronger as the child ages, and her needs potentially come into conflict with the father’s. It will be his needs which he will seek to meet, using the techniques which he deploys in dealing with other adults, including accusations, deception, manipulation and deceit. I therefore assess that there is a real risk of harm to the child posed by the father’s personality traits.
LIKELY EFFECT ON THE MOTHER, AND CONSEQUENCES OF, CONTINUED INTERACTION WITH THE FATHER IN RELATION TO THE CHILD
Both parties were psychiatrically assessed by Dr G in 2011 in anticipation of the then forthcoming interim hearing before Benjamin J. I have already indicated that cross-examination was permitted at that interim hearing. Dr G was amongst the witnesses who were questioned. A transcript of that cross-examination was tendered into evidence before me. By the time of the trial before me, Dr G had retired from professional life. No substitute psychiatrist had been retained, however given the fact that the transcript of Dr G’s cross-examination by the parties was available, I admitted her report and the transcript of her cross-examination into the material before me. Whilst I accept it has not been able to be tested before me, it was able to be tested before Benjamin J, and therefore the unfairness which might ordinarily attend upon the reliance on an expert report without the expert being produced for cross-examination does not arise, or arise in any real way here. Moreover, before Benjamin J, Dr G’s diagnoses of the parties does not appear to have been in contest – the father’s cross-examination of her appears to have directed to accentuating concerns in relation to the mother’s psychiatric health, rather than challenging her opinion.
I agree that, in considering whether or not a proceeding is vexatious, even though it was in a slightly different legislative context, the analysis of Perram J is of great assistance, and I gratefully adopt it.
Has the father frequently instituted or conducted vexatious proceedings in Australian Courts or Tribunals?
Supreme Court proceedings
After the parties separated, the father lodged a caveat over real property of the mother’s in Victoria. The mother brought an Application to remove it. The father claimed some kind of (probably equitable) interest in the property. By order of Byrne J made 10 December 2007, that caveat was removed. The balance of the proceedings were transferred to the Supreme Court of Queensland. Trial directions were made on 31 January 2008, including a requirement for the parties to attend mediation. The father failed and refused to attend the mediation. Further trial directions ensued, including orders for discovery. The father did not comply with those discovery obligations.
The trial of the father’s claim was set down for 23 and 24 February 2009. The day prior to the trial, the father agreed to the orders sought by the mother dismissing his claim, except to pay her costs. Notwithstanding the mother’s solicitors’ suggestion that the matter simply proceed as an argument as to costs, that was refused by the father and a trial on all issues proceeded. In April 2009 Jones J delivered his judgment. He found that the father had no interest in the mother’s Melbourne property. In the course of his reasons, Jones J described the father’s conduct in lodging the caveat as bordering on “the perverse”. In due course costs were awarded against the father for $75,000.00.
The father then appealed to the Court of Appeal. The Appeal was dismissed.
I am satisfied that notwithstanding the fact that the father was the respondent to the proceedings in Victoria, once the caveat was lifted, he was the substantial moving party to the proceedings, and hence was conducting them. I am satisfied that he conducted them primarily with the intention to harass and annoy the mother, and hence they were vexatious proceedings. In so concluding I am particularly mindful that the reasons for the two day trial proceeding was because the parties could not agree as to costs; it follows that the father must have accepted that the substantive proceedings had no reasonable prospects of success.
Bankruptcy proceedings
The father did not pay the $75,000.00 costs awarded in favour of the mother by Jones J. The mother brought a creditors petition. On 8 December 2010, Registrar Baldwin made a sequestration order against the father. On 24 December 2010, the father filed an Application for Review. That was heard on 13 July 2011 before Coker FM, who on 22 July dismissed the Application. Part of the argument that the father relied upon in those proceedings was that the judgement of Jones J had been procured by some species of fraud, collusion, or a general miscarriage of justice. Coker FM specifically found “there is no basis upon which it could be suggested that there has been fraud, collusion, or a miscarriage of justice, and it is not a situation where there should, under any circumstances, be an inclination on the part of this Court to go behind the decision of Jones J and the Supreme Court of Queensland.”
I am satisfied that the primary intention of bringing the Application for Review was to forestall the father’s bankruptcy, and to impede the mother’s recovery of the $75,000.00 which she was owed. It was therefore intended to harass and annoy her and was not brought on reasonable grounds. It was intended to vex the mother. Filing the Notice to Review, and prosecuting of it was instituting and conducting vexatious proceedings
Child support review proceedings
Child support disputes have been a considerable feature of the parties’ conflict over the years. It appears as though the first administrative departure was made by a Departmental case officer on 12 May 2008 who determined that the father’s adjusted taxable income was $113,763.00 per annum resulting in an annual rate of child support of $13,285.00. The father objected to that but on 12 August 2008 the Child Support Agency disallowed the objection. The father the appealed to the Social Security Appeals Tribunal, which on 12 December 2008 affirmed the Departmental decision. At paragraph 96 of her affidavit filed 24 July 2014, the mother said (and she was not cross-examined or otherwise challenged in relation to her evidence) that the Tribunal concluded that “little reliance could be placed on the veracity” of the father’s evidence and considered “that he had not made anything approaching a full and frank disclosure of his income or financial resources.”
I am satisfied that the appeal to the Social Security Appeals Tribunal had as one of its principle motives to annoy or harass the mother. That is not to say that the father did not wish to reduce his child support – plainly it would have been in his financial interests to do so. However absent adequate disclosure, the prospects of him being able to overturn the decision below were slight. I find that he must have been aware of that, and that absent such disclosure, it had no reasonable basis.
On 23 January 2009, according to paragraph 97 of the mother’s 24 July 2014 affidavit, the father appealed the child support decision. Although the evidence is not clear, it appears as though that appeal, or its successor, was heard on 23 March 2010 by Slack FM who delivered his reasons for decision on 7 May 2010. His Honour dismissed the father’s appeal. At paragraph 128 of the mother’s affidavit filed 24 July 2014, she records that relevant reasons then given by the Court included the following:
At every stage of the review process, both within the Child Support Agency and before the SSAT, the decision makers were concerned not only about the lack of adequate disclosure but also the failure of the applicant to explain facets of his financial circumstances that really did require some explanation…Having determined the evidence of the applicant was unreliable and having determined that he had not made full and frank disclosure of his financial circumstances, the SSAT was entitled to reach the conclusion and the exercise of its discretion based on an income amount.
I am satisfied that the appeal was not brought on reasonable grounds, and that a substantial motive of the appeal to the Federal Magistrates Court by the father was to harass and annoy the mother and to seek to wear her down in a conflict then being run on several fronts, of which child support was but one of the several battle fields.
Magistrates Court Domestic Violence proceedings
The mother commenced proceedings for a Temporary Protection Order in November 2007, to which the father made a Cross Application. The hearing proceeded over two days. The matter was determined on 28 February 2008, with a finding that the mother had been the victim of a domestic violence and harassment. The father’s Application was dismissed. In the course of the Court’s reasons, the Magistrate found that the father had maintained since separation “conduct which can aptly be described as continual harassment.” There was a further finding that he had little understanding of his harassing behaviour, which may have arisen from him grieving from the breakup of the relationship.
Notwithstanding those findings, I am unable to conclude that in either bringing his Cross Application or prosecuting it, the father was instituting or conducting vexatious proceedings.
Family Court / Federal Circuit Court proceedings
The mother first commenced proceedings in the Federal Magistrates Court on 21 December 2007, which precipitated the father filing a response on 18 February 2008. By that response, and subsequent amended responses, he sought orders that the child live with him on the Gold Coast. However on 4 March 2008 the parties agreed interim orders which saw the mother and the child continue to live in Far North Queensland, but the child spend time with the father on three days per week. Surprisingly, notwithstanding that agreement, the father nonetheless continued to press for the interim orders which his, by then Amended, Response sought, to the effect that the child live with him on the Gold Coast. On 2 June 2008, an interim hearing of that application occurred before Coates FM. According to paragraph 81 of the mother’s affidavit filed 24 July 2014, during the course of that hearing, the father’s counsel conceded that a change of residence was not going to happen.
In my view, by agreeing to consent orders on 4 March, but still pressing on with interim applications for quite different orders to those which he had just agreed with, the father was intending to harass or annoy the mother, and hence was conducting vexatious proceedings.
On 1 July 2009, the father filed an Application – Contravention. On 20 July 2009 Coker FM dismissed that Application, and in paragraph 101 of the mother’s affidavit filed 24 July 2014, she sets out part of his Honour’s reasons for dismissing the Application including “you’ve told me nothing so far. I am not prepared to go on with the matter any further at this time. It would be an injustice and a travesty in every respect.”
I am satisfied that, even taking into account that it appears as though the father was then self-representing, to bring a proceeding alleging a contravention without any factual material properly supporting it, is initiating a proceeding without a reasonable ground, and hence was a vexatious proceeding.
On 6 August 2009, the father filed an Application in a Case seeking, amongst other things, that the child live with him and only spend supervised time with the mother. That arose out of an event on 31 July 2009 which saw the mother charged with, and ultimately convicted, of one count of driving without due care and attention. On 19 August 2009 consent orders were made, not in accordance with the father’s Application of 6 August, but addressing changeover matters. In my view it cannot be said that the father’s Application of 6 August 2009 was vexatious as it had at least an arguable basis, albeit that the nature of the relief which he sought in that application may have been excessive. I am not prepared to conclude that that Application was vexatious.
The first final hearing of the parties’ competing parenting proceedings was conducted by Benjamin J on 7 and 9 October 2009. Under those orders, the mother had sole parental responsibility and the child lived with her. She was permitted to change residence to the M area.
At [111] of his reasons Benjamin J noted the Independent Children's Lawyer’s submissions to the effect that the mother believes that the father uses Court proceedings, or the threat of them, as a weapon against her. In the following paragraph his Honour noted his concerns that irrespective of any orders which might be made, “the father will continue to come back to Court to seek more time and further direction.”
Notwithstanding those comments – which of course proved to be prescient – I am not persuaded that in pressing for the orders which he did before Benjamin J in that hearing, the father was conducting vexatious proceedings.
Relevant to the children’s proceedings, the next event was the mother filing an Application seeking a suspension of the Orders of Justice Benjamin by Application filed 22 December 2010. On 7 January 2011 the father filed a Response seeking interim and final orders. On 18 January 2011 he filed an Application in a Case seeking a Recovery Order. On 24 January 2011 the father filed an Application for Contravention. On 16 February 2011 the father filed another Application for Contravention.
On 16 February 2011 the matter came for mention before Benjamin J. He ordered the Contravention Application be transferred to the Federal Magistrate Court, but otherwise the matter be transferred to Watts J. Watts J mentioned it on 28 February 2011 and on that occasion set the matter down for hearing as to whether or not there had been a sufficient change of circumstance to justify re-litigation. That hearing proceeded on 18 March 2011 and judgment was given on 27 July 2011. In his reasons published on that day, at [17] Watts J said “unfortunately the father, during the day I heard evidence on the Rice v Asplund issue, embarked, particularly in his submissions, on a character assignation of the mother which, on the material that I have before me, is entirely unwarranted.”
Watts J was not persuaded that there was a sufficient change of circumstance to warrant re-litigation.
I am not persuaded that by pressing for the right to re-litigate, the father was conducting the proceedings vexatiously. It must be remembered that it was the mother who was seeking to re-agitate and re-litigate, at least initially.
Notwithstanding concerns which Watts J raised in relation to the father pressing the outstanding Contravention Applications, on 5 August 2011 the father filed yet another Application for Contravention. All of his outstanding Contravention Applications came for hearing before Coker FM on 11 August 2011. The father alleged that the mother, in total, had contravened 21 of the orders. Coker FM found that 6 contraventions were established, because the mother was not able to establish a reasonable excuse for her non-compliance.
Given that he succeeded at least in a substantial part, I am not persuaded that in pressing the Contravention Applications, the father was initiating or conducting those proceedings vexatiously.
I have already observed earlier in these reasons that, shortly after those contraventions were established, the mother, during the course of a dissociative episode attacked the father in consequence of which she was incarcerated. On 5 September 2011 the father filed an application to change the child’s living arrangements in consequence of, amongst other things, the mother’s assault and incarceration. Even though by the time of the ultimate hearing of that Application the mother was on bail, unsurprisingly Benjamin J was concerned with the child remaining with the mother without some further investigation. He ordered that the child be delivered to the father’s care by 4:00pm Tuesday 6 September 2011, and that occurred.
The further hearing of the interim proceedings was listed for Monday 26 September, with a view to making orders then that would last for a further six to eight weeks. On that day the father filed an Amended Application in a Case seeking that the child live with him and he be permitted to relocate to Melbourne with her. Benjamin J continued the orders that the child would live with the father, but ordered that the child spend increasing time with the mother, albeit still on a supervised basis. On 30 September 2011 the father filed a further Application in a Case seeking that a specific person be the supervisor, which order was not granted. On 1 November 2011 he filed a further Application in a Case seeking to suspend the child spending even supervised time with the mother. That Application did not succeed.
Plainly the father’s proceedings that commenced shortly after the mother attacked him, were not vexatiously instituted: at the time he brought that application, the mother was incarcerated and plainly given her conduct her ability to care for the child was a significant issue. Moreover the material does not enable me to conclude that either of the Applications of 30 September or 1 November 2011, even though unsuccessful, were vexatiously instituted.
The hearing of the interim proceedings with cross-examination ran for three days, concluding on 11 November 2011. On 5 December 2011 his Honour made orders, with reasons being delivered on 20 December. That saw a continuation of the mother’s supervised time with the child until 11 June 2012, with that supervision to be provided either by her parents, her husband or another specifically identified person.
I am not satisfied that in conducting those proceedings as he did before Benjamin J, the father was acting vexatiously. True it is that there are some adverse comments made in the reasons in relation to the father, but plainly the still recent events of the mother attacking the father were a sufficient justification for the institution of the fresh proceedings.
The next proceeding was an application filed by the father staying the orders of Benjamin J. That Application came on for mention before Benjamin J on 1 February 2012. Also on that day the mother filed an Application in a Case seeking that the father’s time with the child be suspended, in consequence of her belief that he was not then living in residential accommodation, but rather was living in a Backpackers Hostel. Both Applications came on for hearing before Benjamin J on 6 February. He dismissed the father’s Application for a stay on the grounds that his submissions “seemed weak at best; perverse at worst…There is a real issue in this Stay Application as to the bona fides of the father.” Notwithstanding those comments, I am not persuaded that the Application for a Stay in relation to a pending appeal can be said to be a vexatiously instituted proceeding.
His Honour adjourned the hearing of the mother’s Application for suspension of time until Thursday 8 March 2012 before Watts J. It does not appear as though that Application was successful. There is nothing on the material before me which persuades me that in opposing that Application, the father was conducting the proceeding vexatiously.
The father’s appeal (filed 14 December 2011) was heard on 3 September 2012. The Full Court decision was handed down on 1 May 2013, in which result the father was wholly unsuccessful, apart from overturning the order which restrained both parties from bringing further proceedings without leave first obtained.
Whilst obviously the Full Court was not attracted to any of the substantive grounds of appeal other than that which succeeded, it is plain that the bringing of the generally unmeritorious appeal is partly explicable by the fact that the father was self-represented, and did not have a clear or good understanding of the processes that he was engaged in. There is nothing in the reasons of the Full Court which would permit the conclusion that the father’s bringing of the appeal was vexatious. I am not satisfied that it was.
On 18 February 2013 the father filed an Application in a Case seeking “Injunctions of the Orders of Justice Benjamin on 4 December 2011.” That Application was brought without leave, which was plainly required. Given that 12 days earlier Benjamin J had refused the father’s Application for a stay, I think it plain that the Application of 18 February was without reasonable foundation, and hence vexatious.
On 5 April 2013 the father filed another Application in a Case in which, amongst other things, he sought leave to commence proceedings for parenting orders. On 26 April 2013 I dismissed that aspect of the father’s Application, and ultimately the Application was dismissed by consent on 18 November 2013. Given that at the time the father filed his Application on 5 April his appeal had been heard, but the decision remained reserved, in my view seeking leave to commence fresh proceedings was vexatious. On no view was there a sufficient change of circumstance to warrant fresh proceedings being brought, which was a critical matter which would need to be established in order for the grant of leave to be given. The fact that the father on 18 November 2013 consented to the balance of the Application of 5 April 2013 being dismissed lends weight to that conclusion.
Notwithstanding that outcome, on 4 December 2013 the father filed a further Initiating Application seeking interim orders for an injunction of the orders of Benjamin J of 5 December 2011, that the Independent Children's Lawyer be removed from the proceedings, and that the child live with him. On 19 December the mother filed a Response seeking, amongst other things, that the father be declared a vexatious litigant. On 4 February 2014 the father filed a Notice of Child Abuse Family Violence and Risk of Violence. On 26 May 2014 I dismissed the father’s Application for interim relief, and particularly refused to remove the Independent Children's Lawyer. There was no reasonable basis on the material for the father to assert that the Independent Children's Lawyer should be removed, and I am satisfied that the sole motive for him seeking that relief was because he perceived that the Independent Children's Lawyer was not acceding to his wishes. It was brought without any reasonable basis. In my view the father’s Application filed 4 December 2013 was instituted vexatiously.
Has the father frequently instituted or conducted vexatious proceedings?
It will be appreciated that I have not formed the view that the father’s entire conduct, whether in instituting proceedings or in conducting them, has been vexatious. However I am satisfied that on numerous occasions, either the proceedings have been instituted vexatiously or they have been conducted vexatiously. I am therefore satisfied that the father has frequently instituted or conducted vexatious proceedings.
Appropriate order
I have already canvassed in other aspects of this judgment, the likely emotional toll on the mother of continuing to be engaged in litigation with the father. I have also noted that in my view, the father will continue to litigate unless and until he achieves what he describes as a “fair” outcome, which he identified as being that the child live with him. Unless he is restrained from litigating in relation to the child, he will continue to do so, and in doing so, is likely to continue to litigate vexatiously.
Ms B opined at [97] of her Family Report of 5 May 2014 that what was deeply worrying is that “[The father] functions emotionally well in these adversarial and litigious environments and reports no distress. He appears to experience it as intellectually stimulating and an elevation in the status of his identity and a sense of purpose.” I accept that evidence. A little earlier at paragraph [91] of that Family Report Ms B had reported that “… [the father] presented at the time of interview as having renewed zeal to maintaining a long and regular litigation process until [the child] is 18 years of age.” She was challenged in relation to that conclusion, and indeed it was supported by the father’s own concession that he would not rest until what he perceived to be a fair outcome had been obtained.
I am satisfied that many of the applications that the father has brought or prosecuted in relation to the mother have been vexatious, although I accept that some, on occasion, have had merit. Some have been vexatious in the sense that they were intended to harass and intimidate the mother into either a further destabilisation and perhaps dissociation, or to attempt to otherwise coerce her to his will. Some were vexatious as being without reasonable foundation. Some may have been both.
The parties conducted a trial before Benjamin J in 2009, which gave rise to final orders. The parties then conducted an interim hearing before Justice Benjamin in 2011 with cross-examination, which resulted in interim orders that were intended to have longevity. They have now conducted a further hearing before me, which has resulted in final orders. Undoubtedly the father will not be happy with those orders. His remedy in that event is to appeal. If there is error in my orders, findings or reasoning, then the Full Court has the power to, and in parenting proceedings such as this is likely to, remit the matter for further hearing before a different Judge.
Plainly in the past, during the time when the appeal from Benjamin J was pending and the Full Court’s decision reserved, the father sought to litigate afresh. If I were to restrain him from commencing further proceedings in relation to the child or against the mother, without leave first obtained, in the event that there is some substantial change or event that occurs, whether there is an appeal pending or not, the father would not be necessarily shut out of litigation, but would merely need to demonstrate sufficient cause for the grant of leave to be made in his favour. In my view that is the appropriate way of accommodating the interests of justice in this case.
I am mindful that that the Full Court previously overturned the decision of Benjamin J, which effected the same outcome as that which an order under s102QB(2) will have. However since that success – and indeed even before it, and in breach of the orders of Benjamin J – the father has again demonstrated his intention to relentlessly pursue the mother.
I accept that it is a grave matter to deny a parent the opportunity to litigate in relation to their child. However upon analysis, my order does not prevent the father doing so per se: if there is a legitimate basis for further litigation, sufficient to warrant a grant of leave, then he may do so. However he cannot be trusted with the unfettered right to issue proceedings against the mother in relation to the child, because he will abuse it. For that reason, any application for leave should be, in the first instance made ex parte: s 102QE(4).
There will therefore be an order that the father be restrained from instituting proceedings either under this Act or in a Court having jurisdiction under this Act, in relation to the child the child, or in which the mother is a respondent.
CONCLUSION
For the foregoing reasons there will be orders as sought by the mother. The father’s Application will be dismissed.
I certify that the preceding two hundred and fifty two (252) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Tree delivered on 24 November 2014.
Associate:
Date: 24 November 2014
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