Willems and Babcock
[2018] FCCA 1810
•18 June 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| WILLEMS & BABCOCK | [2018] FCCA 1810 |
| Catchwords: FAMILY LAW – Parenting – two children aged 10 and 6 – where the mother seeks a restraint on the father and paternal grandparents from bringing further parenting applications – where there have been three proceedings in total – undefended hearing – family violence – best interests of the child. |
| Legislation: Family Law Act 1975 (Cth), pt.VII Federal Circuit Court Rules 2001 (Cth), r.13.03C |
| Cases cited: Attorney General (NSW) v Wentworth (1988) 14 NSWLR 481 Goode & Goode (2006) FLC 93-286 |
| Applicant: | MR WILLEMS |
| Respondent: | MS BABCOCK |
| File Number: | PAC 2356 of 2012 |
| Judgment of: | Judge Betts |
| Hearing date: | 18 June 2018 |
| Date of Last Submission: | 18 June 2018 |
| Delivered at: | Newcastle |
| Delivered on: | 18 June 2018 |
REPRESENTATION
| Counsel for the Applicant: | N/A |
| Solicitors for the Applicant: | N/A |
| Counsel for the Respondent: | N/A |
| Solicitors for the Respondent: | N/A |
ORDERS
All previous parenting orders be discharged.
The Father’s application be dismissed.
The Mother have sole parental responsibility for [X] born 2007 and [Y] born 2011 (“the children”).
The children live with the Mother.
The children spend time with the Father as agreed between the parties but in the absence of agreement to be determined by the Mother in her sole discretion.
(a)Any such agreement is of no effect unless the Mother has communicated it in writing to the Father.
(b)For the purposes of this Order “writing” includes emails and text messages.
(c)The Mother may also require that any such time between the Father and children be supervised by an organisation or person of her choosing.
The Father be restrained and an injunction issue restraining him from:
(a)Removing either of the children from their respective schools without the prior written consent of the Mother;
(b)Removing either of the children from the care of any other institution or person without the prior written consent of the Mother.
(c)Attending at the Mother’s residence without the prior written consent of the Mother.
Within 28 days:
(a)The Registrar of the Court provide to the Department of Family and Community Services (NSW) a copy of these reasons for judgment, the Family Report and these Orders.
(b)The Registrar of the Court provide to the Commissioner of Police (NSW) a copy of these reasons for judgment and these Orders.
Pursuant to section 11(1)(b) of the Australian Passports Act 2005 (Cth), the Mother may apply for a passport for the children [X] born 2007 and [Y] born 2011 notwithstanding that the consent of the Father Mr Willems has not been obtained.
The Mother is at liberty to retain the passports for the children in her possession.
Pursuant to section 11(1)(b) of the Australian Passports Act 2005 (Cth), the Mother is permitted to travel internationally with the children during any period that the children are in her care pursuant to these Orders and notwithstanding that prior consent of the Father has not been obtained.
All outstanding applications are dismissed.
The proceedings are removed from the Active Pending Cases List
NOTATION:
A.The Court notes that the Father did not attend for the final hearing of these parenting proceedings. The Court also notes that the Father had failed to attend two previous parenting hearings resulting in final Orders being made on each of those occasions.
B.In the event the Father proposes to bring further parenting proceedings in this Court, he should reasonably expect that the Court will want a clear explanation for his non-attendance today and he will also need to satisfy the Court that there was been a substantial change in circumstances (Rice & Asplund) because the Court would not lightly entertain a future application by him for parenting Orders given the past history of this matter.
IT IS NOTED that publication of this judgment under the pseudonym Willems & Babcock is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT NEWCASTLE |
PAC 2356 of 2012
| MR WILLEMS |
Applicant
And
| MS BABCOCK |
Respondent
REASONS FOR JUDGMENT
These reasons for judgment were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.
These are parenting proceedings conducted pursuant to Part VII of the Family Law Act (“the Act”). The proceedings relate to two (2) children:
(a)[X] born 2007, who is presently ten (10) years and eight (8) months old (“[X]”); and
(b)[Y] born 2011, who is presently six (6) years and five (5) months old (“[Y]”).
The children are the product of a failed and somewhat turbulent relationship between their father Mr Willems and their mother Ms Babcock. In these reasons I will for convenience refer to the parties as “the father” and “the mother” respectively.
The parties’ relationship commenced in 2005. They were married in 2009 and they separated in 2011.
These proceedings were initially commenced by the father. He was seeking various parenting orders, although he did not seek to disturb the primary residence of the children who have always been in the primary care of the mother both during, and subsequent to, the parties’ relationship.
Undefended hearing
These proceedings have a somewhat chequered history. The father originally commenced parenting proceedings in June 2012, which was not long after the breakdown of the parties’ relationship. Ultimately however, when he failed to attend court on a hearing date in December 2012 the proceedings were dismissed.
Subsequently in 2013 the father held over the child [X] such that the mother had to commence proceedings seeking her return. A recovery order was made in October 2013 following which [X] was returned to the mother’s care. As with the previous proceedings, the father again failed to appear at the hearing with the result that on 4 March 2014 Honour Judge Myers ordered that:
(1) The children of the relationship [X] born 2007 and [Y] born 2011 live with the mother.
(2) The mother have sole parental responsibility for the said children.
(3) The father spend time with the children as agreed between the parties but at the mother’s sole discretion.
The present proceedings were commenced by the father in June 2015 when he applied for parenting orders in the Federal Circuit Court at Parramatta. On at least one occasion, the father did not appear at a Court event but the proceedings were ultimately transferred to the Federal Circuit Court at Newcastle.
On 13 November 2017 the Court made trial directions. The proceedings were listed for a three (3) day final hearing (commencing today). The father did not in fact file any trial material pursuant to the trial directions. The mother did file and serve a trial affidavit as well as a Second Amended Response.
When the matter was called on before me today, the father did not appear despite his name being called outside court.
The mother gave some short oral evidence before me to the effect that she had spoken to the father last night over the telephone. During that call the father advised her that he did not intend to come to court today; he was happy with the orders the mother was proposing; he was comfortable with orders being made by the court as long as he can see the girls “every now and then when he has time”.
I accept the mother’s uncontested oral evidence particularly given that what the father told her is consistent with the past history of the proceedings, namely, that the father seems to engage and then disengage at his own discretion.
In the circumstances I proceeded to hear and determine the matter on an undefended basis today. The Court has power to do so pursuant to rule 13.03C of the Federal Circuit Court Rules.
Material relied upon by the court
For the purposes of this undefended hearing the court has had reference to the mother’s Second Amended Response filed 18 May 2018, the mother’s trial affidavit filed 18 May 2018 and the Family Report dated 1 May 2017 prepared by family consultant Mr A.
The court has also had regard to the mother’s brief oral evidence at commencement of the hearing as referred to earlier.
Parenting proceedings - the law:
As stated, these proceedings are conducted pursuant to the provisions of Part VII of the Act.
Section 60B of the Act sets out the objects and principles of the Act and I have had regard to those objects and principles in arriving at my decision.
I particularly note that section 60B(1) provides that:
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…
I am also mindful of the principles which underlie these objects as set out in section 60B(2) and in particular that:
(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)…
I am mindful of the other provisions of section 60B, subsections (1) and (2), but for present purposes I do not propose to specifically refer to those.
Pursuant to section 60CA of the Act, this court is to regard the best interests of [X] and [Y] as the paramount consideration when making any parenting order.
Section 60CC of the Act sets out the considerations that a court must have regard to in arriving at orders which are in the best interests of children such as [X] and [Y]. The primary considerations are set out in subsections 60CC(2)(a) and (2)(b). Subsection (2)(a) is the benefit to the child of having a meaningful relationship with both of the child’s parents; subsection (2)(b) is the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
The court is also mindful of section 60CC(2A) which provides that, in case of tension between the two (2) primary considerations, the court is to give greater weight to the considerations set out in paragraph 2(b).
The court is also required to take into account the additional considerations in section 60CC(3) to the extent that they are relevant in any given case.
I am also mindful of section 60CG(1) of the Act which provides that the court, in considering what order to make, is to consider the risk of family violence and must, to the extent that it is possible to do so consistently with the child’s best interests being the paramount consideration, ensure that the order:
(a) is consistent with any family violence order; and
(b) does not expose a person to an unacceptable risk of family violence.
Section 60CG(2) provides that the court can include in the order any appropriate safeguards that are necessary for the safety of those affected by the order.
I pause here to note that the mother has given evidence before me today that the latest apprehended violence order against the father has now expired. I note from the material that there are a number of previous incidences of family violence in which the father has been the aggressor and the mother the victim. I also note that, regrettably, the children have been exposed to the family violence on occasion.
In any event, I do not need to consider the terms of any current apprehended violence order as there is no such current order in existence. However, the orders that I intend to make in my view will provide the mother with appropriate protection from family violence going forward.
The legislative pathway to be followed by courts determining parenting applications was identified by the Full Court in Goode & Goode (2006) FLC 93-286 and I propose to follow that pathway. In particular, the court must make a decision as to the issue of parental responsibility (section 61DA) because a finding as to that issue has a flow-on effect in terms of the potential application of section 65DAA of the Act.
Relevant history and findings
As stated, I have had regard to the trial affidavit of the mother as well as to the family report.
The mother’s unchallenged affidavit sets out the history of the matter quite succinctly.
I do not propose to go through the history of the relationship between the parties in any great detail. It suffices for me to say that during the relationship the father was clearly involved in both the use, and sale, of illicit drugs. Indeed, he was imprisoned for selling drugs when [X] was very young – with the result that the mother was essentially left having to look after [X] on her own which would no doubt have been very difficult for her.
The mother had hoped that things would be different when the father was released from prison in 2011. However, her affidavit deposes that after his release the father was continuing to use drugs and that, ultimately, she packed up all of his property and told him that she had to leave. In the intervening period there were episodes of family violence wherein the father hit the mother across the face and police were involved.
In September 2012 the father was sent back to prison for breaching an AVO which protected her from him at that time.
The mother gives accounts of other family violence incidents. I do not propose to recount those in these reasons. It suffices to say that the father clearly decided in September 2013 to retain [X] and [Y] in his care by force.
The mother gives specific evidence at paragraph 49 of her affidavit that when she was at the father’s home on one occasion that the children were being held over by the father, she saw a white powder in a plastic sachet lying next to what she believed was a glass pipe on the coffee table in the father’s lounge room. She says that she had seen such items before when the father was using drugs. Given the father’s past history including his convictions and imprisonment for drug offences it is my view that the mother was reasonable to harbour those concerns.
Police were again involved after the mother obtained a recovery order in October 2013.
According to the mother, and I accept her evidence, it took several months for the children to settle down and to sleep in their own beds after this event.
Any parent who has the care of young children would reasonably be traumatised by that event as described in the mother’s affidavit and in my view it is to her credit that she continued to parent the children in the seemingly positive and loving manner that she did thereafter.
The mother complains that the father continually pressed her to reconcile and that in some respects his time with the children was directed towards reconciliation rather than being about fostering the father/children relationships.
Nonetheless the mother did continue to facilitate time between the father and the children. There were some occasions when the father did not attend arranged visits and the mother still had some ongoing concerns about the father continuing to use drugs as set out in her affidavit.
The mother also gives evidence, and I accept, that the father threatened her. At paragraph 37 of her affidavit she deposes that the father was screaming at her on one particular occasion, saying words to the effect:
You dog cunt. This is my children that you are messing with. I don’t care about the AVO. I don’t care if I go back to jail. You can’t keep me away.
Notwithstanding this threat, the mother continued to foster the children’s relationship with their father although it would seem that from that time she was asking that the father’s parents act as supervisors. The mother recounts further incidences of the father behaving aggressively towards the mother – at different times threatening her, particularly when he found out that she had re-partnered.
On 4 March 2014 His Honour Judge Myers made final orders on an undefended basis as set out in paragraph 7 of these reasons.
After the making of those orders in 2014, the father’s parents became more involved in the parenting arrangements between the parents, seemingly in an endeavour to facilitate ongoing time between the children and the father. The mother however gives evidence that the paternal grandmother threatened her on more than one occasion in relation to the parenting arrangements.
The mother remained concerned in 2014/2015 that the father was not really interested in spending time with the children but was only wanting to see them in order to continue to have contact with her.
In December 2015 the paternal grandfather attended at the maternal grandparents’ home (where the mother lives) and told them that the father had commenced court proceedings and that it was all going to cost a lot of money and it was going to be “very nasty”. The mother gives evidence that this revelation made her feel:
quite sick that it was all starting again.
The father did subsequently institute proceedings at Parramatta, which in February 2016 were transferred to Newcastle.
In August 2016, the paternal grandparents intervened in the proceedings.
In July 2017, interim orders were made for the father to spend supervised time with the children, with the paternal grandparents being the supervisors. It was a three (3) hour round trip for the mother to undertake those changeovers and the mother’s affidavit deposes that there were occasions when the father and his parents simply did not attend at the changeover point – meaning that she and the children then had to turn around and drive back home.
According to the mother’s affidavit, the father stopped spending time with the children altogether from 17 December 2017. It was only at that time that the mother ‘stood up for herself’ and started to send text messages to the father to confirm whether he was intending to see the children or not.
The father has not since then seen the children.
The mother’s unchallenged affidavit evidence is that the father said he was “too busy” with work to see the children over Christmas just gone, and that neither he nor his parents sent the children any Christmas presents. Nor did the father send [Y] a gift or a card for her birthday on 2017 although somewhat surprisingly the father rang [Y] at 10.00pm at night to wish her happy birthday.
The court has the benefit of a family report in this case which was ordered by his Honour Judge Middleton on 8 November 2016.
I do not propose to quote extensively from the family report in these reasons. However, I would specifically refer to the following observations of the report writer at paragraph 27 of the report:
This assessment has identified that there is little in dispute when interviewing the parties, and this is particularly true in regards to both the mother and father and the historical accounts of what had happened in the past. The father did not dispute much about the degree of violence and confirmed everything in regards to AVO’s and the breaches of an AVO, as well as his historical drug use and criminal history…
I pause here to observe that given the father’s imprisonment there was probably little that he could say insofar as his past drug use and breach of AVOs were concerned.
The mother was interviewed by the report writer and set out the history of family violence. I specifically have regard to paragraph 33 of the family report, which sets out various instances of violence to which she makes reference:
33. The mother stated that the history of family violence, as exhibited by the father towards the mother, also made it difficult to ensure a positive and safe environment when the children were spending time with their father. It was a major event of family violence, that lead to police intervention, and the application of an AVO listing the mother and children as protected people, which was subsequently breached. On this occasion of family violence, the father took the children against the mother’s and the eldest child’s will, when the children were very young ([Y] about 6 weeks old and [X] about 5 years old), pushed the mother and placed the children in the front of the vehicle, without harnessing the children and drove off. It was further suggested that the elder child’s nose was bumped when being placed in the car and her nose was bleeding. The father is also said to have swerved the car towards the mother in a threatening way, when she fell down as she attempted to stop the vehicle leaving with the children. Police were called who later intervened and returned the children to the mother. The father later breached the AVO applied against him following the above assault, by way of “text messaging the mother”. The father was incarcerated following the breach of the AVO.
Notwithstanding that past history, the mother did observe as recorded in paragraph 35 of the family report that in terms of her relationship with the father:
Things were much better these days.
She also said that the father had “moved on” such that the lingering relationship issues that he may have felt towards her seemed to be in the past.
During his interview with the report writer, the father confirmed his significant criminal record as well as his own drug abuse and past violent actions towards the mother. The report writer set out the father’s criminal history in paragraphs 50 and 51 of the family report in the following terms:
50. 1999-possess unauthorised firearm and silencer, possess and supply prohibited drug, 2004 – dangerous driving occasion GBH, 2007 – possess prohibited drug, stolen goods, & possess unauthorised firearm, supply prohibited drug commercial quantity – 5year 3 month imprisonment – non parole 2 year 7 months, 2012 – drive with child unrestrained x 2, common assault, and contravene AVO, 2013 possess unregistered firearm / 6 months suspended sentence, failing to provide vet treatment to animal x 3, possess controlled fauna, and possess ammunition, 2015 – traffic offences including providing false name, and drive while suspended x 2, 2015 – possess housebreaking implements & enter enclosed lands, 2016 – (unknown) charges exist, with bail conditions, to report.
51. Additional subpoenaed NSW Police records indicate a summary of – 3 warnings, 2 current bail conditions, 1 current parole, 1 current case, and nil current AVO’s, at the time of subpoenaing such documents. Police notes regarding the event that took place involving the children confirm that on 21/5/12, the father attended the mother’s house in the morning, forced entry, grabbed the children against mother and child’s wishes, took them to car and placed them in (child bleeding from nose), the father pushed mother out of the way with an open hand to her throat, and drove off with children unrestrained.
Importantly, the father raised no specific concern for the children in the mother’s household, telling the report writer (in paragraph 52 of the report) that the mother was “a good mother for the kids”, and that she was loving and caring towards them.
The father did express some concerns to the report writer about the mother perhaps instilling in the children, [X] in particular, a fear that the father may take them from the mother. However, such concerns in my view should be looked at against the actual reality of the case which is that the father had previously done just that. One might reasonably think that the children, particularly [X], might have their own independent recollection of such that event.
I have regard to paragraphs 55 and 56 of the family report which are in these terms:
55. The father did openly confirm the events regarding the taking of the children against the mother’s and the children’s will. The father acknowledged the impact that this event had on the child [Y] and states that the child [Y] still talks about the event. The father reflected upon this stating he regrets his actions, but he did not believe the mother was afraid of him as they continued to have a friendly relationship after this. The father denied that the breach of the AVO was significant and he believed that the breach of the AVO would have had no impact on the children.
56. The father acknowledged his own historic drug use, stating that this was the reason behind his initial trouble with the law, along with firearms issues, specifically being possessing unlicensed firearms and not storing them properly. The father stated that his drug use these days is very limited, and surprisingly the father volunteered that he might nowadays use cocaine very rarely and only on special occasions. The father stated that he does not drink alcohol much at all anymore.
Be that as it may, the ultimate issue here is that the father did not in the family report identify any genuine issues of concern as to the mother’s parenting. Moreover, if the father did have any genuine concerns in this respect one might have expected that he would have come to court rather than allowing the matter to proceed undefended.
At paragraphs 59 and 60 of the family report, the report writer noted that the father had not always taken the opportunity to participate in decision-making for the children – for instance during his prior periods of incarceration. He noted that the father had generally maintained contact with the children, even during his periods of incarceration, as facilitated by the mother.
At the time of the family report the paternal grandparents were actively involved in the litigation and it was being proposed that they might supervise the father’s time. The paternal grandparents expressed some concern about the mother perhaps not facilitating the relationship between the father and the children as best she might. However, in my view such complaints are unfair - particularly given the history of this matter and the reality that the mother has found herself more than once having to raise these two children effectively as a sole parent.
There were issues raised in relation to the criminal history of the paternal grandparents, but I do not propose to dwell on such matters at this time given that the paternal grandparents are no longer parties to the proceeding and have no active role in the matter, nor is it intended by me to make any orders that involve them in any particular way.
The report writer interviewed the children. So far as [X] is concerned it is clear that she wanted to stay living with her mother, but she also wanted to be able to occasionally see her father and her parental grandparents. As a general statement, [X] did not want to spend overnight time with her father at the home of the paternal grandparents (as was then being proposed). However, she was unable to articulate any significant concerns to the report writer in this regard. In the circumstances, the report writer formed the view that it was probably more a matter of [X]’s unfamiliarity with the paternal grandparents’ home rather than any particular concern she had about her grandparents’ care of her.
The report writer expressed some concerns about [X] having witnessed family violence between the parents and clearly the anxieties of the mother around [X] spending time with her father were also evident.
Importantly however, the report writer concluded that [X] had a close, secure and reassuring bond with her mother as well as a positive relationship with her father. The court recognises that in many ways [X]’s positive relationship with her father is a direct result of the mother’s fostering of that relationship in what have clearly been difficult circumstances.
In relation to [Y], she was too young to be able to be interviewed in any realistic way concerning her wishes. The report writer did however note at paragraphs 88 and 89 of the report that:
Her views generally mirrored her sister’s in the sense that she wanted to remain living with her mother but she did value her relationship with her father and her nan and pop. The child appeared to be open to spending time with them, but had some slight reservation, but very age appropriate reservations, in regards to overnight stays.
At paragraph 90 of the family report, the report writer recorded that [Y]’s views were developmentally appropriate; that she clearly had a logical primary attachment to her mother; she continued to depend on her mother for her safety and needs. The report writer also noted that [Y] also has the bond with her father and extended paternal family. Again, it is my view that to a large extent the mother should receive credit for this.
The report writer noted that the interactions between the parties and the children were entirely appropriate. The father made jokes with the children and seemed to relate well with them.
Under the heading “Evaluation”, the report writer expressed concerns about the father’s past criminal history - particularly his previous breach of AVO and drug offences.
At paragraph 107 of the family report, the report writer assessed that the children had a significant and positive relationship with the father, but that the mother had at times had felt coerced into such continued contact between the father and the children. The report writer considered that [Y] had a slightly lesser degree of attachment to the father than did [X]. The report writer evaluated that the children would benefit from spending time with the father even if sometimes during his incarceration or rehabilitation. However, the children would only so benefit if the father was “free from illicit substances and alcohol intoxication, free from criminal behaviour, does not possess firearms, and is not violent, intimidating, denigrating or threatening towards the mother, her family or the children”.
The report writer assessed that while the father said that he posed no threat to the children at all, nonetheless any time the father spends with the children going forward should be supervised either at a supervised contact centre or by a court-approved person.
As earlier observed, the paternal grandparents were at that time mooted as potential supervisors of the father’s time.
The paternal grandparents have not telephoned to speak with the children at all this year. They formally discontinued their application in April 2018.
Parental responsibility
Pursuant to section 61DA(1) of the Act, when making a parenting order in relation to a child:
…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.
Relevantly, section 61DA(2) goes on to provide that:
The presumption does not apply if there are reasonable grounds to believe that a parent of the child…has engaged in abuse of the child…or family violence.
Section 61DA(2) is clearly engaged in this case given the father’s previous family violence and breaches of AVO. That being the case the question of parental responsibility is therefore ‘at large’ for me to determine having regard to the best interests of the children.
I propose to make an order that the mother have sole parental responsibility in this case. I am mindful of the section 60CC considerations and in this case I give particular weight to:
(a)the past history of family violence;
(b)the practical reality that the mother has always made the major long-term decisions for the children and has not been the subject of any real criticism from the father about those decisions;
(c)the fact that the mother is here before this court today seeking an order for sole parental responsibility whereas the father has found himself “too busy” to come to court.
I consider that it would be patently unreasonable to expect the mother to have to communicate with the father insofar as the long-term care, welfare and development of the children are concerned. I have no confidence that the father will be able to put the children’s needs above his own. In all the circumstances I am firmly of the view that an order should be made that the mother have sole parental responsibility.
Section 60CC considerations
In relation to the primary considerations in section 60CC(2), I consider that in a perfect world the children would benefit from having an ongoing meaningful relationship with both parents. However, this is anything but a perfect world. The father has chosen not to spend any time with the children since December 2017 notwithstanding that there are orders in place which provide for such time to occur, albeit on a supervised basis.
If the father does not intend to play a meaningful role in the children’s lives going forward, then in a practical sense he cannot blame this court for exercising its jurisdiction in making the parenting orders that the mother seeks today.
The children would benefit from maintaining their ongoing meaningful relationship with their mother and that meaningful relationship will continue in accordance with the orders that I propose to make.
As for the father, my difficulty is that there are substantial risks associated with his having unsupervised time with the children: see section 60CC(2)(b) and section 60CC(2A). These risks have been identified earlier in these reasons and particularly in the family report. The father is not here to present a case. He is not here to be cross-examined. The court is unable to assess with any confidence that he has “moved on” from his past behaviour and any such finding is not reasonably open to me.
In the circumstances I consider that the risk of harm to the children is serious and relevantly it is ‘unacceptable’ insofar as making any specific orders for time with the father are concerned. I propose to instead make orders that the mother will be the arbiter of the father’s time with the children because to me that is more child-focused than providing for some other form of long term supervision arrangement when the father has not even been going to the trouble of seeing his own children in a supervised setting now for six (6) months.
In terms of the additional considerations in section 60CC(3), using the same paragraph numbering:
(a) I have already set out the views of the children earlier. In short, both children would like to see their father but both wish to stay living with their mother. In any event, given the risk factors identified in this case the wishes of the children can only be given very slight weight, if any.
(b)The children have a loving and close relationship with the mother as set out in the family report. This is unsurprising given that she has been the one stable consistent parent in their lives and it is to her great credit that she has parented under such circumstances of adversity. The children also have a seemingly good relationship with their father. In many ways it is tragic that he has chosen not to spend time with them for the past six months, but that is entirely a decision of his own making.
(c) The mother has always been responsible for major long-term decisions for the children and has always been there for them in a practical sense. As observed earlier in these reasons the father has regularly absented himself from their lives. This is most recently typified by his absence today.
(ca)The mother’s legal representative advises me today from the bar table, and I accept, that the father is not paying child support to the mother. His failure to pay child support would be generally consistent with his other behaviours identified earlier.
(d) The children are well-settled in the mother’s care and the orders that I propose to make will not have any adverse effect on their circumstances. Indeed, the children’s circumstances will remain stable and they will remain with the primary carer (the mother) who has always been there for them.
(e)There are practical issues and expenses relating to the father spending time with the children but the orders that I propose to make in my view will address those practical difficulties and expenses. The mother tells me that the parties live one and a half hours apart. My view is that if the father wants to see the children, and is not paying child support, then he should do the travelling - but that is a matter that I propose to leave to the mother’s sole discretion in these orders.
(f)The mother has a clear capacity to provide for the needs of the children. The father has not shown the capacity to provide for those needs.
(g)No particular issues arise.
(h)I understand that the father is Aboriginal, but in the grand scheme of this case and having regard to all of the other facts and circumstances, I do not consider that the father’s culture makes any significant difference to the outcome. If the father wishes to immerse the children in their Aboriginal culture, which is their right and entitlement and which in an ideal world they would benefit from, then he will need to make the effort to actually spend time with his children.
(i)In my view, the mother has shown an exemplary attitude to the responsibilities of parenthood. Regrettably, although the father has no doubt spent time with the children over the years and has formed a good relationship with them, he simply has not shown the responsibility towards parenthood that the court might have expected.
(j)This is conveniently considered with (k). In this case, the mother has previously had family violence orders in her favour. The most recent such order has now expired. It suffices for me to say that I am satisfied that there has been family violence in the past and my proposed orders reflect that.
(l)It is certainly preferable to make orders that are least likely to lead to the institution of further proceedings. This is the third round of parenting proceedings in relation to these children. The mother seeks specific orders restraining the father (or the paternal grandparents) from instituting future parenting proceedings in relation to these children without leave of the court. However, I do not consider that I can legitimately make such an order today, as I will shortly explain.
(m)No particular issue arises.
The orders I propose to make:
I will discharge all previous parenting orders.
The father’s application for parenting orders will be dismissed.
The mother is to have sole parental responsibility for the children.
The children are to live with the mother and the time they spend with the father will be at the mother’s sole discretion.
I intend to restrain the father from removing the children from their schools, or from any other institution or person where the mother has placed them, without the prior written consent of the mother. I will also restrain the father from attending at the mother’s residence without the prior written consent of the mother.
I will order that the Registrar of the court provide a copy of these orders, the family report and the reasons for judgment to the Department of Families and Community Services (New South Wales). I will also order that the Registrar of the court provide a copy of these orders and the reasons for judgment to the Commissioner of Police (New South Wales). I make clear that the purpose of such machinery orders is to ensure that the relevant State authorities are apprised of this family’s situation going forward, noting particularly the past history of litigation and family violence.
In relation to passports and overseas travel, I accept that the mother ought to be at liberty to solely apply for passports for the children without the consent of the father and I will make orders to facilitate that.
The mother ought to retain the passports for the children in her possession.
I also intend to make an order permitting the mother to travel internationally with the children during any period that the children are in her care pursuant to these orders and notwithstanding that the prior consent of the father has not been obtained.
The purpose of me making these passport orders is so that the mother has liberty to be able to travel overseas with the children at any future time she wants without any risk of the father simply saying ‘no’ so as to frustrate a trip and the parties then ending up back in court.
In giving the mother the power effectively to take these children to wherever she wants in the world I note that the father raises no issue about the mother’s parenting capacity and I am confident there is no risk she is likely to travel to any dangerous places with the children.
Restraining the father and paternal grandparents from filing parenting applications in the future without leave?
The mother seeks an order that the applicant father and the paternal grandparents be restrained by injunction from filing any new parenting applications in relation to the subject children without leave of the court.
I have considered the application over the past few hours while the matter was stood down. Although it is superficially attractive to make such an order, given that this will be the third set of final orders effectively arising due to the father’s non-attendance at court, I consider myself constrained as to what I can actually do in terms of the orders that are sought by the mother.
In particular, section 102QB(1) of the Act provides that:
This section applies if a court exercising jurisdiction in proceedings under this Act is satisfied:
(a) a person has frequently instituted or conducted vexatious proceedings in Australian courts or tribunals, or
(b) a person, acting in concert with another person who is subject to a vexatious proceedings order or who is covered by paragraph (a), has instituted or conducted vexatious proceedings in an Australian court or tribunal.
If section 102QB(1) is satisfied, then section 102QB(2) goes on to give the court power to make the order sought by the mother.
In Marsden & Winch (2013) FLC 93 560 the Full Court (Bryant CJ, Ainslie-Wallace and Ryan JJ) considered the question of vexatious litigation – albeit in the context of section 118 of the Act, the forerunner to the current section 102QB.
Relevantly, their Honours referred with approval to the earlier decision of Roden J in Attorney General (NSW) v Wentworth (1988) 14 NSWLR 481:
150. In Attorney-General v Wentworth Roden J said at [487]:
Meaning of “vexatious”
This is obviously a critical term, and can hardly be regarded as mere surplusage. If, as I believe must be the case, “habitually and persistently and without any reasonable ground institutes vexatious legal proceedings”, means something different from “habitually and persistently and without any reasonable ground institutes legal proceedings”, then relevant vexation cannot be found simply in the habitual or persistent manner in which legal proceedings are instituted, in a lack of reasonable ground for their institution, or in a combination of those factors. Something more is required. Similarly, the use of the words “without any reasonable ground”, implies that it would be possible to institute vexatious legal proceedings, and indeed to do so habitually and persistently, with reasonable ground.
151. His Honour continued:
A subjective element, such as malice, lack of bona fides, or ulterior motive, seems to be both appropriate and necessary to give significance to the term “vexatious” within the context of s 84(1). It provides the required “something more” than is conveyed by the other words in the section, and it is consistent with legal proceedings instituted either with or without reasonable ground. If I were unaided by judicial authority, I would opt for such a construction here. I appreciate that, isolated from its context, the expression “vexatious legal proceedings” could mean “legal proceedings which vex”, irrespective of the motives of the person instituting them. A construction requiring a purely objective test might also be applied to the word when used in the expression “vexatious litigant”, which also appears in the section, although it would sit less happily there. The construction required for present purposes, however, is a construction within the context of the section as a whole; and for the reasons stated, I would, on first impression, opt for the inclusion of a subjective element.
152. We observe that while Roden J was concerned with the meaning of these words within the context of a difference statute, that difference is not material to our consideration. We agree with his Honour’s construction of the word “vexatious” and, in particular his rejection of the meaning being “legal proceedings which vex”.
In paragraph 81 of the joint judgment, their Honours ultimately endorsed the test which had been adopted by Roden J:
I believe that the test may be expressed in the following terms:
1. Proceedings are vexatious if they are instituted with the intention of annoying or embarrassing the person against whom they are brought.
2. They are vexatious if they are brought for collateral purposes, and not for the purposes of having the court adjudicate on the issues to which they give rise.
3. They are also properly to be regarded as vexatious if, irrespective of the motive of the litigant, they are so obviously untenable or manifestly groundless as to be utterly hopeless.
Returning now to section 102QB(1), this section requires a finding that the father has “frequently” conducted “vexatious” proceedings.
In this case, there have been three (3) proceedings in total.
I cannot find that the first proceeding was itself “vexatious”. Clearly there were parenting issues that had to be determined at the time of the first proceedings and the children in particular had a right to have parenting orders made which were consistent with their best interests and this would ordinarily involve a consideration of what role each parent should play in their lives.
So far as the second proceedings were concerned, these arose because the father held over the children - but it was the mother who then brought those proceedings. The father did not ultimately appear at the final hearing resulting in the undefended orders being made by Judge Myers in March 2014 to which I have earlier referred.
The third (and present) proceedings were commenced by the father who was seeking to spend time with the children (and various other orders). However I cannot say that these proceedings were of themselves “vexatious”.
While the father’s conduct has clearly fallen short of what would have been expected of a litigant and, indeed, what would have been expected of a parent in terms of his failure to attend the court, this does not of itself make these proceedings “vexatious”.
In paragraph 82 of the joint judgment in Marsden & Winch (supra), the Full Court noted that the trial Judge had identified a possible alternative to the test propounded by Roden J. Specifically, the trial Judge had noted that in that particular case the mother had developed post-traumatic stress disorder, substantially as a result of the persistent litigation. Thus, said the trial Judge:
172. The present case involves protracted serial proceedings over many years, involving a child, in circumstances where that litigation itself has had a significant effect on the psychological health of the primary care giver of that child and potentially future litigation might have a far greater effect on the psychological health of the primary care giver to the extent that that person’s parenting capacity might be seriously compromised. I accept that the mother has, inter alia, developed post-traumatic stress disorder, substantially as a result of the persistent litigation.
173.The question to be considered is whether or not the proceedings brought by the father, whilst not falling precisely within any particular description are nonetheless vexatious when considered in the light of the effect that the proceedings has had on the respondent in the proceedings.
174. It is my view that in a very narrow group of cases (of which this is one), where there is clear evidence upon which a finding can be properly made that:
174.1 the current proceeding is only the most recent proceeding in a long series of litigation about the same child or children; and
174.2 the cumulative effect of serial proceedings and, in particular the current proceedings, has caused the primary carer considerable distress, worry, annoyance, irritation and unhappiness to the extent that it has had a profound effect on their psychological health and potentially their ability to continue to care for the child
then it is open to the court to make a finding that the most recent proceedings can indeed be described as vexatious within the meaning of s 118 FLA.
On one view this litigation has certainly been protracted. However, applying the test set out above I am not satisfied on the evidence that the proceedings have had:
a significant effect on the psychological health of the primary caregiver of the child
in this case, the mother.
Nor am I satisfied that potential future litigation may have:
potentially a far greater effect on the psychological health of the primary care giver to the extent that that person’s parenting capacity might be seriously compromised.
On all the evidence I have seen, the mother is an excellent parent and while she has no doubt suffered some stress and angst around the bringing of these proceedings I simply cannot find in this case that the father has “frequently instituted or conducted vexatious proceedings”. Absent such finding, I cannot impose the restraints that the mother seeks.
Conclusion
In closing, I accept that these children are “caught in the middle” and the mother is left not knowing what the father’s ultimate parenting intentions might be. This court considers that to be an unfair situation for both the mother and the children – and with that in mind I intend to add a specific notation to the orders as I want to send a very clear message to the father.
I will otherwise make orders which dismiss all extant applications and remove the proceedings from the active pending cases list.
I certify that the preceding one hundred and eighteen (118) paragraphs are a true copy of the reasons for judgment of Judge Betts .
Date: 6 July 2018
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Injunction
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Jurisdiction
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Procedural Fairness
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Remedies
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