FEDERAL CIRCUIT COURT OF AUSTRALIA
| HOGARTH & SCRIVENS (No.2) | [2020] FCCA 377 |
| Catchwords: FAMILY LAW – Whether the court should make a vexatious proceedings order under s.102QB(2) of the Family Law Act 1975. |
| Legislation: Births, Deaths and Marriages Registration Act 1996 (Vic), s.22B |
| Cases cited: Mazorski v Albright [2007] FamCA 520 |
| Applicant: | MR HOGARTH |
| Respondent: | MS SCRIVENS |
| File Number: | MLC 2643 of 2016 |
| Judgment of: | Judge Small |
| Hearing dates: | 27, 28 & 29 May 2019 |
| Date of Last Submission: | 11 July 2019 |
| Delivered at: | Melbourne |
| Delivered on: | 26 February 2020 |
REPRESENTATION
| Counsel for the Applicant: | The father in person |
| Solicitors for the Applicant: | None |
| Counsel for the Respondent: | Ms Bonney |
| Solicitors for the Respondent: | Wisewould Mahony Lawyers |
| Counsel for the Independent Children's Lawyer: | Mr Goddard |
| Solicitors for the Independent Children's Lawyer: | Ebejer And Associates |
ORDERS
All previous parenting orders in relation to the child X born in 2016 (“the child”) are discharged.
The mother shall have sole parental responsibility for the child.
The child shall live with the mother.
The child shall spend time and communicate with the father as follows:
a)until the last Sunday of January in the year in which the child commences high school on each alternate Sunday from 9:00 a.m. to 6:00 p.m. commencing on 1 March 2020;
b)from the commencement of the school year in which the child commences high school, by agreement between the parties, and failing agreement by 30 June the previous year, the parties shall attend upon a Family Dispute Resolution Practitioner and make a genuine effort to come to agreement before instituting further proceedings in this or any other Court exercising jurisdiction under the Family Law Act 1975 (Cth) or any subsequent legislation dealing with the time children spend with their separated parents;
c)From 11:00 a.m. to 5:00 p.m. on Christmas Eve 2020 and in each alternate year thereafter, and from 11:00 a.m. to 5:00 p.m. on Christmas Day in 2021 and in each alternate year thereafter;
d)From 9:00 a.m. to 6:00 p.m. on Fathers’ Day each year; and
e)At other times that the mother in her sole and absolute discretion shall decide.
Should Christmas Eve, Christmas Day, or Fathers’ Day fall on a Sunday when the child would otherwise be spending time with the father pursuant to paragraph 4(a) hereof, then in addition to the Christmas Eve, Christmas Day or Fathers’ Day time, the child shall spend time with the father on the first Sunday after that Christmas Eve, Christmas Day or Fathers’ Day from 9:00 a.m. to 6:00 p.m.
Should Mothers’ Day fall on a Sunday when the child would otherwise be spending time with the father pursuant to paragraph 4(a) hereof, the father’s time shall suspend for that day, and the child shall spend time with the father on the following Sunday from 9:00 a.m. to 6:00 p.m.
If the mother enrols the child in any extra-curricular activity that takes place on Sundays, the father shall ensure that the child attends that activity during his time with the child, and he shall be at liberty to remain at the activity to watch the child subject to any protocols or requests of the activity’s operator, and the mother shall not attend that activity on days when the child is spending time with the father pursuant to these Orders.
Until the commencement of the school year in the year in which the child commences high school, changeover shall take place at the mother’s home at the commencement of the father’s time and at the McDonalds restaurant closest to the father’s home at the conclusion, and the father’s partner Ms A, and/or the paternal grandmother Ms B (“the changeover agents”), shall conduct changeover on behalf of the father, and the father is hereby restrained by injunction from attending at or being within 500 metres of the changeover venue at those times.
If the child is too ill to attend his scheduled time with the father pursuant to these Orders, the mother shall inform the father by text message as soon as practicable, and, within 7 days of the scheduled time she shall provide to the father a medical certificate stating the child’s inability to attend for time with the father, and make-up time shall be provided from 9:00 a.m. to 6:00 p.m. on the next Sunday after the scheduled time period.
The father shall be at liberty to send the child a birthday present each year via the paternal grandmother, or by ordinary prepaid post, and the mother shall provide to the father an address, not necessarily her own, to which the child’s birthday present might be sent, and the father shall not otherwise attempt to contact the child save in strict accordance with these Orders at any other time.
The father is hereby restrained by injunction from contacting the mother at any time or by any means, including through third parties or the child, unless:
a)both of the changeover agents are unavailable to conduct changeover, in which circumstance he shall send the mother a text message no later than 48 hours before changeover informing her of that fact, and providing the names of three possible alternative changeover agents, each of whom shall be someone known to the child, and the mother shall choose one of those three people to conduct the next changeover and inform the father of her decision by text message no later than 24 hours prior to the changeover; or
b)he is unable to exercise his time with the child, in which case he shall inform the mother of that fact by sending her one text message immediately upon becoming aware that he is unable to exercise that time; or
c)the child develops an illness or suffers an injury while in his care that requires urgent professional medical assistance, in which case he shall immediately inform the mother by text message of all details including the name and contact details of any doctor, dentist or other medical or allied professional who is treating the child, and he shall inform any such medical or allied health professional that the mother has sole parental responsibility for making decisions about the child’s health and medical treatment and shall provide her telephone number to such medical or allied health professional; or
d)a member of his immediate family is hospitalised or dies, in which circumstance he shall advise the mother by text message on one occasion and one occasion only, and she, in her sole discretion, shall decide whether the child shall attend any hospital where the immediate family member is being treated, or the funeral of any immediate family member who has died.
The parties are hereby restrained by injunction from:
(a)abusing, insulting, belittling, rebuking or otherwise denigrating the other or any member of the other’s family or household in the presence or hearing of the child, and from allowing him to remain in the presence or hearing of any third party who is engaging in such conduct;
(b)discussing these proceedings or any parenting disputes or issues in the presence or hearing of the child, save to explain any changes in his living arrangements to him as a result of these Orders, and from allowing him to remain in the presence or hearing of any third party who is engaging in such conduct;
(c)allowing the child to read, have read to him, or otherwise access any part of the Court’s Reasons for Judgment in this matter, or any document prepared for the purposes of these proceedings or tendered at trial.
The mother shall notify the father as soon as practicable in the event of the child suffering any serious illness or injury which requires the child to be admitted to a hospital while he is in her care (“the notification”), and the mother shall decide in her sole and absolute discretion whether the father shall be permitted to attend at the hospital to visit the child, and in that regard:
a)The father shall ask whether he might visit the child on one occasion, and one occasion only, after he has received the notification, and he shall not attend at the hospital without the express consent of the mother first having been obtained in writing, including by text message; and
b)he shall abide by all requests of the mother and/or the hospital during such attendance, including leaving the hospital when asked.
Each party shall advise the other of any medication prescribed for the child while in their respective care, including the dosage and frequency prescribed, and each shall ensure that such medication travels between their houses with the child, and that any such medication is taken in accordance with its prescription.
The mother shall authorise any child care, kindergarten, school or extra-curricular activity in which the child is enrolled to provide to the father, at his expense, all information, notices, photographs, reports and like materials usually provided to parents.
Subject to any protocols determined by the relevant educational institution or authority, and until the commencement of the year in which the child commences high school, the father shall be at liberty to attend the child’s child care, kindergarten or school on no more than one occasion per term in order to obtain information about the child’s progress, and he shall make an appointment with the child’s child care, kindergarten or school before attending.
The father is hereby restrained by injunction from asking, persuading or otherwise influencing any third party, including his partner or any other member of his family, to do anything that he is prevented from doing pursuant to these orders.
The Order of Judge Williams, dated 17 November 2016, appointing the Independent Children’s Lawyer is hereby discharged.
IT IS NOTED that publication of this judgment under the pseudonym Hogarth & Scrivens (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLC 2643 of 2016
| MR HOGARTH |
Applicant
And
| MS SCRIVENS |
Respondent
REASONS FOR JUDGMENT
Introduction
This is a parenting dispute between (“Mr Hogarth” or “the father”) and (“Ms Scrivens” or “the mother”).
The parties have one child, namely X born in 2016 (“X” or “the child”).
The parties are in dispute about whether X should continue to see his father.
Mr Hogarth works as a professional and his salary indicates that he is very good at his job.
The professional services industry is based on precision of mathematical measurements to the millimetre, without which buildings might fall, or fail to provide their intended purpose. There can be little or no negotiation on such matters, although the path to that precise outcome might be a little less black and white.
Ms Scrivens is a professional who works in the area of employment, which she defined at trial as “public service”. Those aspects of the law are not quite as precise as others might be, based as they are on values and a necessary flexibility in thought patterns to find different ways of achieving goals.
Personal human relationships, too, are not precise entities, governed as they are by emotions, expectations, implicit and explicit agreements, the necessity for flexibility of thought, and the ability to genuinely negotiate in a non-judgmental manner.
It is the clash of these two ways of operating in the world that brings this matter to this Court.
The issues to be decided in these proceedings are as follows:
A.Whether the parties should share parental responsibility for X after his eighth birthday or whether that responsibility should remain with Ms Scrivens alone;
B..Whether it is in X’s best interests for him to continue to spend time with his father, and if so, in what circumstances;
and
C.Whether the father ought to be the subject of a vexatious proceedings Order under s.102QB of the Family Law Act 1975 (Cth) (“the Act”).
Background
Mr Hogarth is now 49 years old, having been born in 1971. As already stated, at the time of trial, Mr Hogarth was employed as a professional.
Ms Scrivens is now 41 years old, having been born in 1979. At the time of trial, Ms Scrivens was employed as a professional at Employer C.
The parties met in 2015 and shared a brief relationship of some three weeks or so that concluded in early July of that year. During the three weeks of that relationship X was conceived, but the parties were unaware that Ms Scrivens was pregnant when she ended the relationship in 2015.
In late 2015, Ms Scrivens applied for a Family Violence Intervention Order against Mr Hogarth, and on 17 February 2016 she accepted an Undertaking from him to resolve those proceedings.
X was born in 2016 by emergency caesarean section, and Ms Scrivens did not inform the father of X’s birth until after the event. Mr Hogarth learned of his son’s birth by way of a letter from the mother’s solicitors to his solicitors in 2016, when X was nine days old.
X was born with a heart condition, Supraventricular Tachycardia, and lived with that condition for the first year or so of his life, but it resolved itself with the assistance of medication as he grew older.
The father spent limited time with X in the immediate period after his birth, because, the mother says, she was concerned that X’s health issues reduced his capacity to manage time away from her.
Mr Hogarth initiated these proceedings seeking to spend regular time with X in 2016, when X was five weeks old.
Therefore X has been the subject of these proceedings essentially for his whole life.
The mother filed her Response on 2 May 2016 and an Independent Children’s Lawyer was appointed by order of the Court on 17 November 2016.
X lives with his mother and currently spends time with his father each Tuesday afternoon for 2 hours when Mr Hogarth collects X from and returns him to his childcare centre/kindergarten. The Tuesday afternoon time is not supervised.
In addition to the weekly Tuesday time, X spends four hours with his father on one day each alternate weekend from 2:00pm to 6:00pm. The alternate weekend time is supervised by the paternal grandmother, Ms B (“Ms B”). Ms B also takes X to most changeovers, collecting him from Ms Scrivens’ home and returning him to the care of his mother at a local McDonald’s Restaurant.
The mother seeks sole parental responsibility for X, for X to live with her, and for him to spend no time with the father until he begins secondary school. The mother also seeks a vexatious proceedings order pursuant to s.102QB of the Act.
Mr Hogarth seeks that the mother have sole parental responsibility for X until he is eight years old, that X live with Ms Scrivens, and that he spend time with Mr Hogarth in a graduated regime leading to substantial and significant time between father and son.
The Independent Children’s Lawyer seeks Orders for the mother to have sole parental responsibility for X, for him to live with her and to spend one weekend per month with his father, with the father being permitted to send him birthday and Christmas presents.
The matter had twice been listed for trial before the Final Hearing commenced on 27 May 2019 and ran for two-and-a-half days. The father was self-represented and both the mother and the Independent Children’s Lawyer were represented by counsel.
Witnesses at trial were the father, the mother, the father’s partner (“Ms A”), Dr D, the psychiatrist who prepared psychiatric reports in relation to both parties (“Dr D”), Dr E who is the mother’s treating clinical psychologist (“Dr E”), and Ms F, the Regulation 7 Family Consultant who prepared three Family Reports in this matter (“Ms F”).
All witnesses underwent cross-examination.
Following the conclusion of evidence and after receiving written submissions by all parties, I reserved my decision.
Issues and Evidence
This case has produced a large file comprising many folders of documents which are now contained in a cardboard box. That is known to the Court’s administration as a “box file”, and it indicates that the documents filed in this case have been voluminous and that the matter is highly conflictual. I note that the matter had been before this Court on no less than twelve separate occasions before it was transferred to my docket after a Mention on 4 February 2019.
It is not possible to refer to every fact and/or matter raised in the trial of these proceedings and nor is it necessary to do so. The parties should understand that I have had regard to the whole of the evidence, including affidavits relied on, my notes, the demeanour of the parties at trial, and the entire transcript of the three days on which the trial ran, and if I have not referred to a particular fact or matter it does not mean that I have not considered it.
Issue A: Whether the parties should share parental responsibility for X after his eighth birthday or whether that responsibility should remain with Ms Scrivens alone
At the commencement of the trial, Mr Hogarth conceded that Ms Scrivens should have sole parental responsibility for X until he is eight years old.
He did not make any clear application for the parties to share parental responsibility for X after that date (and nor did the mother for that matter), but I proceed on the basis that he wishes to share that responsibility with Ms Scrivens at that time, as, pursuant to s.61C(1) of the Act, each parent has parental responsibility for a child in the absence of an order to the contrary.
Section 61DA(1) of the Act states that, when making a parenting order, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
Section 61DA(2) states 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 abuse of the child or family violence.
Section 61DA(4) states 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 the child’s parents to equally share parental responsibility for that child.
In this case, Ms Scrivens applied for her first Family Violence Intervention Order against Mr Hogarth in early November 2015, before X was even born, and Mr Hogarth currently has a five year Family Violence Intervention Order against him lasting until 25 February 2023, that Order having been made after a contested trial.
As the Family Violence Protection Act2008 (Vic), the legislation under which that Order was made, provides that a Family Violence Intervention Order cannot be made unless a magistrate is satisfied that there has been an act of family violence, and that it is likely to recur, I am satisfied that there are reasonable grounds for me to believe that Mr Hogarth has engaged in family violence against Ms Scrivens.
Therefore, the presumption does not apply in this case. I will return to the issue of family violence in more detail later in these Reasons.
I must therefore consider whether it is in X’s best interests for his parents to share responsibility for making decisions about major issues in his life, such as his education, including where he goes to school, his health and medical treatment, his religious practice if any, and whether he is permitted to travel overseas[1], after his eighth birthday.
[1] These are examples only of issues falling under the definition of “parental responsibility” and are not to be taken as an exhaustive list.
Conclusion A
For all the reasons set out in paragraphs 48 to 224 of these Reasons, I cannot find that it is in X’s best interests for his mother to have to negotiate with his father and come to agreement about the major issues in his life.
Times come, in every child’s life, when such decisions must be made in a timely manner, and the examples of the issue about X’s name, and whether X could accompany his mother overseas in 2017 in particular, do not give me confidence that the parties are able to easily come to consensus on major issues without high levels of conflict, which cannot be in X’s best interests.
The presumption in s.61DA is therefore rebutted.
I accept that the parties were able to agree about whether X should change his child care centre in early 2019, but as I said to the parties at the commencement of the trial, it is what happens where these parents are unable to agree that is the major issue before the Court in these proceedings.
I will therefore make an order that the mother have sole parental responsibility for making major decisions about X’s care, welfare and development until he turns 18, when he leaves the jurisdiction of this Court.
Issue B: Whether it is in X’s best interests for him to continue to spend time with his father, and if so, in what circumstances
This is the issue at the core of these proceedings.
Ms Scrivens wants X to spend no time with his father until he reaches high school age and can fully express his views on the matter, while Mr Hogarth seeks Orders that would see his relationship with X develop to a stage where he spends overnight and school holiday time with him that would satisfy the definition of “substantial and significant time” set out in s. 65DAA(3) of the Act.
The Independent Children’s Lawyer wants Mr Hogarth’s time with X to be severely restricted so that he spends only one day per month with his son, but that he be permitted to send cards and gifts for X’s birthday and at Christmas.
An Order for a child to spend time with a parent is, unsurprisingly, a “parenting order” under s.64B(2)(b) of the Act.
The law in relation to parenting orders is found in Division 5 of Part VII of the Act.
S.60CA of the Act states:
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
S.60CC then sets out 16 separate matters the court must consider when deciding which particular orders might be in a child’s best interests, and I will address each of these matters separately.
There are two primary considerations set out in s.60CC(2) as follows:
(2) The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
The meaning of the term “meaningful relationship” has been addressed in several cases that have come before this court and the Family Court of Australia.
In an oft quoted passage from the judgment of Brown J in Mazorski v Albright [2007] FamCA 520, Her Honour said at paragraph 26:
A meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitative one.
That is, the meaningfulness of a relationship between a child and his/her parents is measured by the quality of the time spent and not by the amount of time.
In Tait & Dinsmore [2007] FamCA 1383, Cronin J said, at paragraph 170:
To be a meaningful relationship, it must be healthy, worthwhile and advantageous to the child… Those adjectives mean that children need their parents to lead by example about self-discipline. Children need to learn to develop the ability to relate with others. They need to learn about the privileges and responsibility which will devolve upon them as parents. Those are fundamental parts of the meaningful relationship.
In this case, there is no doubt that X’s relationship with his mother is meaningful in every sense of the definitions set out by Brown J and Cronin J.
She has been his primary carer for his whole life and from all reports, X is a delightful child. Reports from his child care centre and Ms F show him seeking out his mother when he is distressed and finding comfort in her care.
From the evidence of Ms F, who had the significant advantage of seeing and assessing X and his parents on three separate occasions during the proceedings, X’s relationship with Mr Hogarth has developed over time such that it, too, can be called “important, significant and valuable to the child” and “healthy, worthwhile and advantageous to the child”, although the Court retains some concern about Mr Hogarth’s ability to provide a role model for X in the terms described by Cronin J in Tait & Dinsmore.
As to the matters set out in s.60CC(2)(b), the issue is less clear cut.
It is the mother’s case that Mr Hogarth has subjected her to a consistent and persistent pattern of harassment and abuse since before X was born which has all but crippled her mental health.
That harassment has consisted of large numbers of text messages in a single day on the same topic, verbal abuse in writing about what he perceives as her refusal to allow him to see X or be a genuine father figure in his life, and persistent emails and letters to her lawyers and the Independent Children’s Lawyer, knowing that that correspondence would be sent to her.
The behaviour includes historical physical abuse in the form of taking her keys and refusing to allow her to leave his home when Ms Scrivens told him the relationship was over. It is Ms Scrivens’ evidence that Mr Hogarth told her later that he thought that if he prevented her from leaving, she would stay in the relationship.
I note that Mr Hogarth does not deny the essential substance of Ms Scrivens’ allegations, but in his mind, his behaviour does not constitute family violence.
Indeed, he sees himself as a victim of family violence, as he says that Ms Scrivens’ persistent refusal to allow him to be the father that he wants to be to X is a form of family violence in itself, as it “prevent(s) the family member from making or keeping connections with his or her family, friends or culture”[2].
[2] S4AB(2)(i) of the Act.
As will be seen later in these Reasons, Mr Hogarth’s view of what constitutes family violence is very selective indeed.
Ms Scrivens referred to herself at trial as having been “broken” by Mr Hogarth’s behaviour.
She says that that pattern of behaviour has affected her ability to care for X and if it does not stop she fears that eventually it will destroy her.
The evidence of her clinical psychologist, Dr E, supports that evidence insofar as it describes her current emotional state. Dr E has never met Mr Hogarth.
Ms Scrivens says that if X continues to spend time with his father, Mr Hogarth’s harassment will not stop and her capacity to properly care for X will be severely compromised.
For the reasons set out in paragraphs 153 to 191 of these Reasons, I find that X does need to be shielded from the family violence inflicted on Ms Scrivens by Mr Hogarth.
S. 60CC (2A) states that when a court is applying the considerations set out in subsection (2), it must give greater weight to the consideration set out in paragraph (2)(b).
Therefore, the question is, how do I craft Orders that allow the relationship between father and son to develop appropriately, while protecting X from the fallout from the family violence perpetrated on his mother by his father?
S.60CC(3) then sets out 14 “Additional considerations” as follows:
(3) Additional considerations are:
(a) any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;
X is now four years old, and is still too young to express any cogent views about whether or not he should see his father which would have any weight in my deliberations.
That is so despite Ms Scrivens’ evidence that he has told her multiple times that he does not want to leave her to spend time with Mr Hogarth. I note in that regard that despite that evidence, she also gave evidence that X often comes back from time with his father in a generally happy mood.
(b) the nature of the relationship of the child with:
(i) each of the child’s parents; and
(ii) other persons (including any grandparent or other relative of the child);
X’s relationship with his mother is reported to be strong, close, loving, and appropriately caring in every way. There is no evidence to suggest that she is other than a very competent, loving and supportive parent.
His relationship with his father is also reported to be loving and caring, and it was the evidence of both parties at trial that the relationship between X and Ms A is also a close and appropriate step-parent relationship. There is no evidence to suggest that his relationships with his teen-aged step-brothers are other than positive and appropriate as well.
In addition, X appears, from the evidence before the court, to have close and loving relationships with his grandparents on both sides of his family. I note in that regard that his paternal grandmother conducts changeovers with Ms Scrivens and that they have a warm relationship despite the conflict between the parties. I note further that at the time of trial, X was spending regular overnight time with his maternal grandmother.
(c) the extent to which each of the child’s parents has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long‑term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child;
Ms Scrivens has so far made almost all the major decisions about X’s life, save that the parties did agree about where X should attend child care in early 2019. However, even then, Ms Scrivens informed Mr Hogarth of her wish to change X’s child care centre to one closer to her home, and sought Mr Hogarth’s consent for that to happen. Mr Hogarth attended at the proposed child care to inspect its facilities and indicated that he would agree to the change, but after X had attended an orientation day at the new centre, Ms Scrivens decided not to move him.
It is Mr Hogarth’s evidence that that was the first major decision about X’s welfare where he had been genuinely allowed to have a voice and that the parties had been able to agree on. Unfortunately, it is the only example he can point to.
One of the early disputes between the parties was in relation to X’s name, that dispute resulting in X’s birth not being registered until he was almost a year old.
Ms Scrivens originally wanted him to be called G, but capitulated to Mr Hogarth’s insistence that he be called X. The issue of his middle names (which I understand are the names of his grandfathers) was also a matter of contention, as was whether X’s surname would be “Scrivens” or “Hogarth-Scrivens”.
In late 2016, Ms Scrivens agreed that X’s name should be “X”, but still no birth certificate was issued because of further issues, with each party blaming the other for the delay.
Ultimately, and most unfortunately, the issue was resolved by the Registrar of Births, Deaths and Marriages, who, on 3 February 2017, exercised powers under s. 22(b) of the Births, Deaths and Marriages Registration Act 1996 (Vic) to decide that the child’s name should be registered as “X”, just as Ms Scrivens had agreed some months earlier in correspondence with Mr Hogarth.
Mr Hogarth alleges that Ms Scrivens has engaged in a carefully designed and executed plan to keep him out of X’s life entirely, and has prevented him from making major decisions about X’s care, welfare and development.
It is Ms Scrivens’ case that Mr Hogarth behaves in a relentlessly demanding, controlling and bullying manner, sending her text and Our Family Wizard messages constantly, and insisting that he be involved in every aspect of X’s life, so that she feels permanently under siege.
She says that she did not ask Mr Hogarth to help her decide issues such as where X would go to child care because his communications with her inevitably deteriorate into arguments to the extent that she feels ground down by him.
That issue is so detrimental to her health, she says, that despite Mr Hogarth having provided an Undertaking to the Magistrates Court of Victoria that he would not harass her, she did not tell him when she went into hospital to have X and, indeed, gave birth under an assumed name, as Mr Hogarth had threatened to be present at the birth against her wishes, and to come to the hospital and cut the umbilical cord when the child was born.
Mr Hogarth has been seeking to spend time with X since before he was born.
It was his initial position, soon after X’s birth, that he wanted overnight time with X, and during the proceedings his proposal changed from equal shared care when X was six months old, to X living with him and spending no time with Ms Scrivens for some six months, to his final proposal that would see X continuing to live with his mother, with a progression of time with his father to overnight immediately upon orders being made.
The father has spent time with X regularly pursuant to interim court orders since May 2016, but he seeks more time than he currently enjoys.
Ms Scrivens has sometimes been critical of him when he has not exercised that time, and there have been times when X was not well enough to leave his mother’s care. On at least one of those occasions Mr Hogarth expressed some doubt as to whether X had actually been ill, such is his mistrust of Ms Scrivens.
It is and has always been his case that Ms Scrivens wishes to “alienate” him from X, although she has complied with court orders for X to spend time with his father throughout these proceedings.
However, it is true that Ms Scrivens’ final proposal to this court is that X should spend no time with Mr Hogarth until he is in high school.
(ca) the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child;
The question of child support has provided fertile ground for dispute in the parental relationship between these parties.
Ms Scrivens applied for a Child Support Assessment from the Department of Human Services (Child Support) (“the Child Support Agency”) when X was in his infancy, but it is her evidence that as Mr Hogarth had refused to sign his birth certificate as his father, her application could not proceed at that time.
Mr Hogarth initially denied paternity for child support purposes and refused to pay child support for X, even after a declaration was made in this Court on 23 May 2016 that he was X’s father for the purposes of these proceedings, which, I note, he initiated with an Initiating Application which stated that he was indeed X’s father.
The paradox of holding those two irreconcilable positions at the same time does not appear to have troubled Mr Hogarth.
I note, too, that after that declaration was made, Mr Hogarth obtained tissue samples of some kind from himself and X so that a DNA test could be conducted to establish his paternity, that process being completed without the knowledge or consent of Ms Scrivens.
It is pertinent, in this context, to set out Ms Scrivens’ evidence found in her trial Affidavit, affirmed and filed on 1 November 2018, in relation to emails sent to her lawyers soon after X’s birth, and only days before these proceedings were instituted.
Paragraph 83 c: In emails to my solicitors, on 24 and 25 March, 2016, the Applicant:
i. Said it was “premature” for me to seek child support, as the birth certificate had not been completed and I had not produced proof of parentage with my application for child support:
ii. Blamed me for delaying the birth certificate, saying I was the one refusing to resolve the issue of X’s name;
iii. Suggested we may have to go to VCAT for the name issue;
iv. Said he had “lodged a formal complaint” against the child support officer who he said had made “misleading comments” about him;
v. He wrote that if my lawyer “continue(s) to harass and bully me… I will make enquiries regarding action against you and your firm”.
vi. He also stated ‘Since I am not currently working I was advised by the CSA that the financial obligation is 34/month, is this acceptable to your client?’
vii. He accused me of being “solely focused” on getting money from him, and that “on the matter of access and the continued abuse of X’s rights by his mother” he would “see you in court”.
Paragraph 83 d: When he was subsequently advised by the CSA as to the assessed amount of $285 per week, he contacted me by SMS and said he told them he refused to pay their assessed amount, that he couldn’t afford to pay child support as assessed, and that if I didn’t agree to a lesser amount he would resign from his job.
Ms Scrivens annexes a copy of that text message to her trial Affidavit.
It is her further evidence that because Mr Hogarth refused to pay her the assessed amount of child support, she requested the Child Support Agency to enforce collection on her behalf.
She says that at various times between X’s birth and December 2016, Mr Hogarth had sought Changes of Assessment on the basis that she had lied about her income, made objections to Child Support Assessments, asked the Child Support Agency to investigate and prosecute her if she had lied, and threatened that he was “prepared to take it to the AAT and Federal Court if required”.
After an investigation by the Child Support Agency, which she found extremely stressful, Ms Scrivens says no change was made to Mr Hogarth’s Child Support Assessment.
Nevertheless, she says, on 5 June 2017, when the matter was before this Court, Mr Hogarth had told her barrister that unless she agreed to his requests for time with X, he would stop paying child support.
In addition, Ms Scrivens says she received correspondence from the Child Support Agency on 15 June 2017, advising her that Mr Hogarth had lodged another application to change his Child Support Assessment.
On 12 September 2017, the Child Support Agency had forwarded to her a copy of a letter from Mr Hogarth “threatening to report me to the ATO, threatening to take the process through the AAT and the Federal Court and to subpoena all of my financial records. The applicant also stated that he refused to contribute to child care unless he got 50/50 custody”.
Ms Scrivens deposes that:
Paragraph 83 j: Again, the investigation into my assets and bank account were found to be truthful and no action was taken other than to disallow the applicant from lodging any further assessments until January 2019.
Ms Scrivens complains that Mr Hogarth is always (“every single month”) late in paying his child support and that he makes no “additional, voluntary contributions to X’s welfare”, such as for medical bills, clothing, or birthday or Christmas presents.
It is Ms Scrivens’ further evidence that despite an Order from this Court ordering Mr Hogarth to pay her a proportion of her childbirth expenses under s.67D(2) of the Act, he told the Child Support Agency that those payments were non-Agency child support payments, so that his Child Support arrears were diminished, but she was never paid for the ordered childbirth expenses.
Mr Hogarth says in his Trial Affidavit affirmed 7 November and filed 8 November 2018 that the allegation that he had threatened to cease paying child support if Ms Scrivens did not agree to his proposals on 5 June 2017 “never happened and is fabricated by her” (paragraph 4. p.).
It is his evidence that he had telephoned the Child Support Agency on 20 June 2017 to advise them that he had a new job and that his salary had increased, but that he “was advised by them that I didn’t need to do this and that a re-assessment would occur after that financial year tax re-turn” (sic).
In his “Additional Trial Affidavit”, affirmed on 7 May and filed on 9 May 2019, Mr Hogarth deposes, in relation to Ms Scrivens’ allegations about his child support payments, as follows at paragraph 4:
a.Earlier this year Ms Scrivens filed a new change of assessment with Child Support. It is noted that she makes a declaration (item 24) that the form is completed and correct, well in fact this is a false declaration under the act that she has failed to complete the form correctly with information she is required to do so (sic).
b.I have consistently paid child support in accordance with extensive CSA assessments even though their contact and requested information with employers (sic).
c.Ms Scrivens requested my child support’s contributions increase from $15000/pa to $17000/pa in this latest assessment.
d.In January I lost my job and advised this in my affidavit financial statement filed this year.
e.Whilst unemployed I continued to pay child support with some funds I have in surplus. I chose to continue this and avoid conflict but more importantly continue to provide for X as best I could.
f.In response to Ms Scrivens Child support Change of Assessment 2019 I agreed to the increase to avoid further conflict with her and provide further support for X.
g.Ms Scrivens in her CSA document letter dated 11/4/19 makes further untrue and misleading remarks that she provides no evidence to (sic). This document is aggressive in promoting her conflict with me.
h.It should be very clear to everybody and this Honourable Court that the respondent’s mothers view (sic) on paternal responsibility only extends as far as a financial one. Her whole behaviour and case are to exclude the father from X’s life but pursue and financial gain possible (sic) even if that means her lying.
i.I wrote to Child support 30/4/19, advising that despite the issue remaining unresolved I had started to make the increased payments and if they were yet to be released then I seek that they are (sic).
j.I have tried to avoid conflict here, but I am now going to have to file my own change of assessment as I am aware of the following;
i.she sold her investment property
ii.she published a book that is currently for sale
iii.she sold her business
iv.she holds a new more senior position at Employer C as a professional
v.she has a family trust which I believe she uses to siphon/hide money through
Under cross-examination by Ms Scrivens’ counsel at trial, Mr Hogarth was forced to concede that he had indeed threatened to resign from his job, to start a company and to work casually if the mother did not agree to him paying a lower amount of child support than that which had been assessed by the Child Support Agency.
He also conceded that he had asked the Child Support Agency, in mid to late 2016, to investigate Ms Scrivens because he believed that she was earning more than she was disclosing to the Child Support Agency. He said that it was the position that either party is able to make an objection to a Child Support Assessment if they believe that the other party is not being honest about their income, and that he simply did not believe that Ms Scrivens’ taxable income could be $17,000 a year when she was working in her own business.
When it was put to him that the outcome of that investigation had been that there had been no criticism of Ms Scrivens, and that she had been “found to be truthful in her income”, he replied: “No, I – I – I don’t – I don’t – I can’t remember – I can’t remember what the final result was”.
When pressed on the matter, Mr Hogarth said that there had been no findings by the Child Support Agency that Ms Scrivens had declared her correct income, and that the outcome had been not that she had declared her correct income, but that there would be no change to his Child Support Assessment.
I consider that evidence to be “splitting straws”.
The following exchange then took place:
Counsel for the mother: Okay. But part of the mother’s case is – and I’m going to ask you to comment on the proposition – is that if you don’t get what you want, that you then initiate proceedings either in a court or you complain to an agency such as the child support agency, or Dr H or Ms F.
Mr Hogarth: I haven’t – I haven’t complained about the Child Support Agency. There was – there was an officer who…
Counsel for the mother: No. All right. Well, I would withdraw that bit of the question.
Mr Hogarth: There was an officer who – who – behaved inappropriately in the very initial stages, but I have had nothing but very good dealings with Child Support, ever since.
Counsel for the mother: All right. So that’s part of the mother’s case, though, is that if you…
Mr Hogarth: But that’s not justified.
Counsel for the mother: Did you lodge a formal complaint against the officer who made the misleading comments about you?
Mr Hogarth: No. No, I spoke to her supervisor about the misleading comments, and she apologised to me for it because she said that yes…
Her Honour: This is the supervisor of…?
Mr Hogarth: This is the very initial Child Support Agency…
Her Honour: Was that Ms J?
Mr Hogarth: No, it wasn’t Ms J.
Her Honour: No?
Mr Hogarth: No. The – the Child Support Agency officer was highly rude to me in the very, very outset. That was the application that was rejected. […] Upon this application there was no issues with them.
Counsel for the mother: At page 108, I asked you about this before, 15, in 2016. So in context, X is one month and one day old. You write to Ms K[3]:
Good afternoon Ms K – I have spoken with Child Support and lodged a formal complaint against the officer who has made misleading comments about me to your client.
[3] The mother’s lawyer.
So you have lodged a formal complaint with the Child Support Agency, haven’t you?
Mr Hogarth: There was no – well – okay, if you – depend on how you were the words formal.
Counsel for the mother: It was your words.
Mr Hogarth: I spoke to – I spoke to…
Her Honour: Well, it’s either a formal complaint or it’s not, Mr Hogarth, come on.
Mr Hogarth: It was a complaint. There was nothing in writing. It was complaint verbally over the phone.
Her Honour: Well, you’re the one who called it a formal complaint.
Mr Hogarth: Well then – whether I might have used the wrong word in this.
It is clear from the above extract that at least at the beginning of X’s life, Mr Hogarth had some issues with the Child Support Agency. It is also clear that some of his written evidence lacks credit.
Some time was spent during Ms Scrivens’ evidence at trial on the question of whether Mr Hogarth had or had not paid any money towards the childbirth expenses Order of 23 May 2016.
It was difficult to glean from Mr Hogarth’s cross-examination of Ms Scrivens exactly what he had told the Child Support Agency about those payments, but Mr Hogarth tendered to the court a Child Support Agency document headed “Objecting to a Child Support decision”, which included a statutory declaration made by him on 21 July 2016, a spreadsheet setting out Ms Scrivens’ living expenses between 23 December 2015 and 26 April 2016, and a copy of the orders of 23 May 2016 which, he said, would support his evidence on the matter.
A further, rather lengthy, exchange then took place, with Mr Hogarth attempting to confirm the exact nature and amounts of money paid to Ms Scrivens, until the following exchange then took place:
Her Honour: Well, that’s not agreed, so that’s up to me to decide what happened. It’s not up to me to decide who owes what. This is not a child support hearing. This is a hearing about whether you spend time with X for not.
Mr Hogarth: There are orders separate to that for expenses, and I’m merely saying, your Honour, that…
Her Honour: This is not a child support hearing. It is one of 16 matters that I need to take into account, your history of maintaining, is the way it’s put in the legislation – the word “maintaining” is used – so it’s about how much you have, over X’s life, contributed to his maintenance. That’s all. It’s not an argument about child support as such.
Mr Hogarth: This isn’t the child support issue. Child support were the subsidiarity of her application. The point I’m making today is that Her Honour Judge Williams’ orders in May that year, of the 2000, I have paid a thousand of it.
Her Honour: That’s what you say.
Mr Hogarth: Yes.
Her Honour: What Ms Scrivens says is that that has been counted as a non-agency payment of child support, not towards medical expenses. I know you don’t agree with that. That’s what Ms Scrivens says. It’s up to me to look at the documents you’ve provided, which you say show that it was reversed, and I will do that, of course, when I’m looking at the evidence.
Mr Hogarth: Thank you.
In fact, it is not necessary for me to make such decisions in parenting proceedings. It is for the Child Support Agency to make those decisions, but I have discussed this matter here in order to display the conflict between these parties that arises whenever child support and related payments are mentioned, and the detailed manner with which Mr Hogarth views issues he sees as challenging his perceived rights and obligations.
It appears clear from other exchanges between the parties during the mother’s evidence at trial, that child support continues to be a point of difference and conflict between the parties, and it is difficult to see any change in that situation.
(d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
Ms Scrivens seeks orders that would entirely cut X off from his father, his step-mother and his two step-brothers. It is not clear whether she would allow X to continue to spend time with his paternal grandmother if there were to be no time between X and his father. However, the mother admits that X loves his paternal grandmother, and that he feels safe in her care, and Ms Scrivens stated clearly at trial that she had no problem with Ms B and her care of X.
Ms Scrivens also indicated that she had no argument with Ms A, and that she and the father’s new partner had been able to be pleasant and courteous to each other at changeover when Ms A had facilitated that process.
Permanently separating a child from a parent is an extremely serious matter, especially when the primary considerations as set out above include the benefit to a child of having a meaningful relationship with both parents.
There is little doubt that there would be a significant impact on X if I were to order that he have no time at all with his father until he is in high school.
Ms F stated at trial that it would be unlikely that X would remember his father by then if he were separated from him at this early stage in his life. Therefore, even if he were to seek his father out in his adolescence, a possibility that was canvassed during the trial, that process would be much more difficult for him, and, I suspect, it would not be helpful to Ms Scrivens to have that possibility hanging over her head for the next eight or so years.
The impact on Mr Hogarth, too, would clearly be profound if I were to now suspend his time with X, as all the evidence shows a positive and consolidating relationship between X and his father and his father’s side of the family.
There is no suggestion that X should be separated from his mother or members of his mother’s family.
(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
At the time of trial the parties lived approximately half an hour apart, and I do not see there being any particular practical difficulty or expense in these circumstances which would substantially affect X’s right to maintain personal relations and direct contact with both his parents on a regular basis.
(f) the capacity of:
(i) each of the child’s parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
There is no evidence to say that Ms Scrivens is unable to provide for X’s physical and material needs. She houses, feeds and clothes him appropriately, and he has been well socialised through his attendance at childcare and kindergarten.
There is considerable evidence, from the family reports, the oral evidence of Ms F at trial, and the subpoenaed documents from X’s child care centre, that she is also able to provide for his emotional needs, and that he sees her as his primary comfort source.
Nevertheless, it is Ms Scrivens’ case that her parental capacity has been damaged by what she sees as the relentless nature of Mr Hogarth’s criticism of her, and his perpetuation of the conflict between them at every stage of these proceedings.
At the time of trial, after some three years of litigation, and regular and frequent time being spent between X and his father, it was also clear that the father is able to meet X’s needs in the physical and material sense, although at the beginning of these proceedings that issue was not so clear, and it is only through that regular time being spent between father and son that Mr Hogarth has been able to develop an appropriate parental capacity in dealing directly with X.
There is, however, some considerable concern about Mr Hogarth’s capacity to provide for his son’s emotional needs.
In saying that, I do not mean to imply that he is unable to comfort X when he is distressed, but to state clearly that X is at risk of emotional harm from Mr Hogarth’s animus towards X’s mother, and from the continued and relentless conflict between his parents, the major responsibility for which, as will become obvious later in these Reasons, I place at Mr Hogarth’s door.
(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;
I do not find anything in the parties’ or X’s maturity, sex, lifestyle or background that might be relevant to his best interests.
(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
There is no evidence that X has any Aboriginal or Torres Strait Islander heritage.
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
When Ms Scrivens discovered she was pregnant with X, and informed Mr Hogarth of that fact, she says that he pressured her to terminate the pregnancy because she was not interested in continuing her relationship with him.
She says that Mr Hogarth gave her a clear choice: to rekindle the relationship and keep the pregnancy; or, if she were not interested in rekindling the relationship, to terminate the pregnancy.
The text messages from that time annexed to both parties’ affidavits early in these proceedings, indicate that Ms Scrivens was somewhat ambivalent about her pregnancy, and that Mr Hogarth wanted her to terminate it. Indeed, he went so far as to tell her in one text message that he hoped that she would miscarry.
However, once it was established that Ms Scrivens was not going to terminate her pregnancy, Mr Hogarth appears to have changed his mind and decided that he wished to be a genuine father to X.
Ms Scrivens’ attitude to X is primarily one of protection, but perhaps a little over protection as a result of her own frailties.
She has fulfilled her parental responsibilities in an appropriate manner, and despite Mr Hogarth’s deeply-held beliefs, she has not kept X from him during these proceedings, but has provided him for time with his father pursuant to orders made by the court, and, for the most part, made by consent of both parents.
I note that during the trial, at the commencement of his cross-examination of Ms Scrivens, Mr Hogarth was able to praise her for her parenting saying: “I absolutely applaud you for the job you’ve done with him to date. I know it mustn’t be easy on your own, and both Mum and I think that your day-to-day care of him is excellent, and she will absolutely attest to that”.
While I have absolutely no doubt that Mr Hogarth loves X dearly, and wants only what is best for him, there have been times during X’s life where Mr Hogarth’s animus towards X’s mother has taken precedence over his commitment to his parental responsibilities to X.
After three full years of litigation in two courts, it is difficult to interpret Mr Hogarth’s behaviour, which he sees as merely an attempt to have a relationship with his son, as indicating an attitude other than one of proprietary rights to X. It could be said that he guards his relationship with X jealously[4], and I use that word in its dictionary meaning, and not as a synonym for “enviously”.
[4] Jealousy: 1. a. The consuming fear, suspicion, or belief that one is being or might be displaced in someone's affections; Shorter Oxford Dictionary
Mr Hogarth’s affidavit material, and his oral evidence given at court, indicate an attitude, and a positional stance, that he is a victim of a conspiracy, whether conscious or unconscious, involving Ms Scrivens, Dr D, Dr L, Ms F, and indeed the entire family law system in this country, the purpose of which is to separate him from his son and to punish him for being male.
I will expand on that issue later in these Reasons, but mention it here as it colours the Court’s view of Mr Hogarth’s attitude to his responsibilities as X’s father.
(j) any family violence involving the child or a member of the child’s family;
This issue is central to these proceedings.
It is Ms Scrivens’ case that Mr Hogarth’s behaviour, since well before X’s birth, amounts to family violence under the Act.
Mr Hogarth says that his behaviour has been designed only to ensure that he has an appropriate paternal relationship with X. He does not see that behaviour as constituting family violence in any way.
The Act defines family violence as follows:
“S.4AB(1) For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member), or causes the family member to be fearful.
S.4AB(2) examples of behaviour that may constitute family violence include (but are not limited to):
(a) an assault; or
(b) a sexual assault or other sexually abusive behaviour; or
(c) stalking; or
(d) repeated derogatory taunts; or
(e) intentionally damaging or destroying property; or
(f) intentionally causing death or injury to an animal; or
(g) unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or
(h) unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or
(i) preventing the family member from making or keeping connections with his or her family, friends or culture; or
(j) unlawfully depriving the family member, or any member of the family member’s family, of his or her liberty.”
Clearly, most of those examples do not apply to this case, although subsection (j) might well have applied on the evening in June 2015 when Ms Scrivens told Mr Hogarth that their relationship was over and he withheld her car keys from her in order to prevent her from leaving.
Sections (c) and (d) however, are very pertinent to this case.
“Stalking” is not defined in the Act, and therefore takes its “ordinary meaning”. The Shorter Oxford English dictionary defines “stalk” in this context as:
Harass or persecute (someone) with unwanted and obsessive attention.
In addition, s.21A of the Crimes Act 1958 (Vic) defines stalking thus:
(2) A person (the offender) stalks another person (the victim) if the offender engages in a course of conduct which includes any of the following—
(a) following the victim or any other person;
(b) contacting the victim or any other person by post, telephone, fax, text message, e-mail or other electronic communication or by any other means whatsoever;
(ba) publishing on the Internet or by an e-mail or other electronic communication to any person a statement or other material—
(i) relating to the victim or any other person; or
(ii) purporting to relate to, or to originate from, the victim or any other person;
(bb) causing an unauthorised computer function (within the meaning of Subdivision (6) of Division 3) in a computer owned or used by the victim or any other person;
(bc) tracing the victim's or any other person's use of the Internet or of e-mail or other electronic communications;
(c) entering or loitering outside or near the victim's or any other person's place of residence or of business or any other place frequented by the victim or the other person;
(d) interfering with property in the victim's or any other person's possession (whether or not the offender has an interest in the property);
(da) making threats to the victim;
(db) using abusive or offensive words to or in the presence of the victim;
(dc) performing abusive or offensive acts in the presence of the victim;
(dd) directing abusive or offensive acts towards the victim;
(e) giving offensive material to the victim or any other person or leaving it where it will be found by, given to or brought to the attention of, the victim or the other person;
(f) keeping the victim or any other person under surveillance;
(g) acting in any other way that could reasonably be expected—
(i) to cause physical or mental harm to the victim, including self-harm; or
(ii) to arouse apprehension or fear in the victim for his or her own safety or that of any other person—
with the intention of causing physical or mental harm to the victim, including self-harm, or of arousing apprehension or fear in the victim for his or her own safety or that of any other person.
(3) For the purposes of this section an offender also has the intention to cause physical or mental harm to the victim, including self-harm, or to arouse apprehension or fear in the victim for his or her own safety or that of any other person if—
(a) the offender knows that engaging in a course of conduct of that kind would be likely to cause such harm or arouse such apprehension or fear; or
(b) the offender in all the particular circumstances ought to have understood that engaging in a course of conduct of that kind would be likely to cause such harm or arouse such apprehension or fear and it actually did have that result.
(8) In this section—
"mental harm" includes—
(a) psychological harm; and
(b) suicidal thoughts.
In addition, I note that s.5(3) of the Family Violence Protection Act 2008 (Vic) states that:
To remove doubt, it is declared that behaviour may constitute family violence even if the behaviour would not constitute a criminal offence.
As already stated, Ms Scrivens alleges that since she told Mr Hogarth that she did not wish to pursue their relationship, he has behaved in a manner which could only be called stalking under the above definitions.
She says he has constantly telephoned her and sent her large numbers of text messages and emails, despite her making very clear to him that she did not wish to receive such correspondence or have any contact with him at all.
It is her evidence that he has written to the Child Support Agency, Centrelink, and perhaps the Australian Taxation Office, to report her for understating her income, thus affecting her entitlement to child support or Centrelink benefits, or an appropriate income tax assessment.
There is further evidence before the Court that he has written to her lawyers, to the Independent Children’s Lawyer, and to the chambers of the three judges who have had carriage of this matter at different times in this Court, complaining about her or their behaviour, and generally disparaging her or them. He also made a formal complaint to the Victorian Legal Services Commissioner about what he saw as unprofessional conduct and bias on the part of the Independent Children’s Lawyer.
He had refused to pay costs previously awarded against him in these proceedings, and I note that I made orders on 29 May 2019, after all evidence had been received, that within 60 days, he pay the setting down and hearing fees for the Final Hearing on 27, 28 and 29 May 2019, which he ought to have paid prior to the trial; the costs order made against him on 15 November 2018; his half share of Dr D’s psychiatric report in the sum of $2,200.00; and the costs of both the mother and the Independent Children’s Lawyer for the hearing on 4 February 2019 in a total sum of $2,387.00.
That he had not paid those monies until those Orders were made might be seen as him putting yet more pressure on Ms Scrivens and on the Independent Children’s Lawyer, whose behaviour he had criticised. Indeed, that behaviour could be seen as a form of economic abuse.
I note that inquiries conducted by my chambers lead the Court to believe that Mr Hogarth has now complied with his financial obligations under the Orders of 23 May 2019.
Further, Ms Scrivens says that Mr Hogarth has put her under surveillance, and/or hacked her computer, as he knew things about her that were of an intimate nature and which she had not told him, such as her nickname for a previous partner.
These are only some of the allegations Ms Scrivens has made against Mr Hogarth, and I note that in general, save for the allegation that he has put Ms Scrivens under surveillance, he does not deny that he has done those things. He simply does not see them as constituting family violence, because he was only trying, he says, to spend time with his son.
I respectfully beg to differ on that issue.
The allegations of Ms Scrivens, as set out above, clearly fall within the definition of stalking found in the Shorter Oxford Dictionary and in the Crimes Act 1958 (Vic). In addition, the majority of the written correspondence between the parties also fits the description of “repeated derogatory taunts” from Mr Hogarth.
While each individual act, text, email, court application or telephone call might not constitute stalking on its own, and may in its own substance be quite innocent, when one places them all together in the context of these proceedings, I find that they constitute the “course of conduct” required to found an allegation of stalking under s.21A of the Crimes Act 1958 (Vic), and there is no reason why that definition should not apply in this Court to the word “stalking” found in s.4AB of the Act.
I am therefore satisfied that, together with the matters set out in paragraphs 192 to 210 below, the above evidence discloses a persistent and consistent pattern of family violence perpetrated upon the mother by the father from before X’s birth to the time of trial.
The debilitating effect of that behaviour on Ms Scrivens is clearly apparent in her own affidavit material and her oral evidence given at trial, and in the reports of Dr D, Dr E, Dr L and Ms F.
Before her very brief but intense relationship with Mr Hogarth, Ms Scrivens described herself as a “resilient” person, but at trial, after three full years of being subjected to that behaviour, she described herself as “broken”.
I note that in written correspondence between the parties by text, the My Family Wizard application or by email, the mother’s tone was at first assertive, and at times quite feisty in response to the father’s inability to refrain from contacting her, but as time went on, her side of that correspondence took on a more weary and even desperate tone as she felt unable to stop his attacks.
Her demeanour at trial, while generally quite robust, at times broke down, and she was visibly upset when considering the possibility of X spending extended time with his father.
I note that Ms F, in particular, was in the unique position of being able to trace the mother’s demeanour over a period of some 2 ½ years in her preparation of the three family reports in these proceedings.
At trial, under cross-examination by counsel for the mother, and after stating that Ms Scrivens’ presentation at the second and third interviews had deteriorated when compared to the previous assessment, and that her reports of her stress levels were commensurate with that observation, Ms F stated the following:
As I said in the third report her – her ability to focus her thoughts in interview had reduced. Her, I call it ruminating. So she would go – there would be a thought and it would just lead into this cycle of concerns, and then aspect would reduce, as in she became chary, less able to manage. In the second report that pattern wasn’t present. In the first she was brighter in sessions. So over those three interviews I saw that change in her presentation at interview and how she was describing how she was present – how she was managing the interactions with X’s father and managing the court cases. Her reports of her own health and her management of her own stresses – stress levels was in parallel with what I was seeing in her interviews.
Mr Hogarth does not believe that Ms Scrivens is afraid of him.
He cites a time when Ms Scrivens arrived at X’s child care centre to collect him as Mr Hogarth and Ms A were preparing to leave after delivering X at the end of Mr Hogarth’s time with him.
Mr Hogarth says that Ms Scrivens saw him and Ms A at their car, and deliberately crossed the road in front of their car, which, he says, indicates that she was not afraid of him.
That incident simply pales into insignificance in the face of all the other evidence of Ms Scrivens’ experience of her contact with Mr Hogarth, which discloses a persistence in harassing her beyond the resilience of any person.
Mr Hogarth says that Ms Scrivens suffers from an undiagnosed mental illness which has caused her to fabricate evidence about him.
Until the morning of the first day of trial, it was Mr Hogarth’s case that that “mental illness” meant that the Court should find that the mother had alienated X from him, and make orders that X live with him. Moreover, Mr Hogarth said that in those circumstances, X should not see his mother for six months after the change of residence.
I note that Ms Scrivens is clear that Mr Hogarth’s behaviour has had considerable negative consequences for her mental health, and that the psychiatric report of Dr D diagnosed her as suffering from “an Adjustment Disorder with Mixed Emotions, arising from her brief relationship with Mr Hogarth and the pregnancy with X”.
I note further that the process of denying a person’s lived reality, and convincing that person that their experience is false, is called “gaslighting”, and it is highly detrimental to that person’s mental health.
On the evidence before me, I am satisfied that Mr Hogarth’s behaviour does constitute family violence under the Act, and that Ms Scrivens’ response to that was a reasonable one in all the circumstances and not the result of any mental illness.
s4AB(3) of the Act states that “a child is exposed to family violence if the child sees or hears family violence or otherwise experiences the effects of family violence[5]”.
[5] Emphasis added.
X lives, and has always lived with his mother. He cannot help but have experienced the effects on her of the relentless pursuit of her by his father during these proceedings, no matter how much Ms Scrivens has attempted to shield him from that effect.
In the alternative, Mr Hogarth argued at trial that, even if his behaviour during the first year or so of X’s life was abusive, it was no longer so, and that the court should not allow historical behaviour to determine his future relationship with his son.
However, when his more recent behaviour was analysed while he was under cross-examination by the mother’s counsel and counsel for the Independent Children’s Lawyer, it became apparent that his abusive behaviour was not merely historical in nature, and that it had continued right up to the trial.
(k) if a family violence order applies, or has applied, to the child or a member of the child’s family—any relevant inferences that can be drawn from the order, taking into account the following:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv) any findings made by the court in, or in proceedings for, the order;
(v) any other relevant matter;
In late 2015, some months before Ms Scrivens was due to give birth to X, she made an application for a Family Violence Intervention Order against Mr Hogarth because of his continued failure to refrain from contacting her and making demands upon her about his future relationship with X.
At that time, she obtained a full Interim Intervention Order and the matter was adjourned for a Directions Hearing on 17 February 2016.
Ms Scrivens’ initial Intervention Order application was resolved at the Directions Hearing on 17 February 2016 by Ms Scrivens accepting an Undertaking from Mr Hogarth in essentially the same terms as the Interim Intervention Order, with Ms Scrivens having the right to reinstate her Intervention Order application.
Later in 2016, Mr Hogarth was found guilty of having breached the initial Interim Intervention Order on 17 November 2015 and 26 November 2015 by contacting Ms Scrivens. He was placed on a Diversion Order and ordered to pay $500.00 to a charity.
On 9 August 2016, despite orders of this Court being in place, and as a result of further harassment and unwanted contact from Mr Hogarth about his time with X and child support issues, Ms Scrivens applied to reinstate her Intervention Order application and was granted an Interim Intervention Order. I note that it is Ms Scrivens’ evidence that in the time between Mr Hogarth providing the Undertaking to the Magistrates Court on 17 February and Ms Scrivens’ filing her Notice of Reinstatement and obtaining an Interim Intervention Order on 9 August 2016, Mr Hogarth had contacted her, either directly or indirectly, on no less than 106 occasions.
On 30 November 2016, Ms Scrivens’ application to reinstate her previous Intervention Order came before the Magistrates Court of Victoria at Suburb M.
Ms Scrivens describes Mr Hogarth and his barrister standing behind her in the line of people waiting to see the Registrar and making loud comments to the effect that her application was ridiculous and would be “thrown out” by the magistrate. She deposes to feeling intimidated by that behaviour.
Mr Hogarth initially sought to contest the application, but after the magistrate spoke to him he consented to a final Intervention Order being made without making any admissions as to the allegations contained in the application.
That Intervention Order was to expire on 8 June 2017, but on 5 June 2017, Ms Scrivens made an application to extend it, and a further Interim Intervention Order was made.
In his Trial Affidavit affirmed 7 November and filed 8 November 2018, Mr Hogarth describes that day’s proceedings thus:
Paragraph 4.
h: After failing to get her way proceeding with trial in June 2017 Ms Scrivens attended the Suburb M Magistrates Court after the FCC hearing a re applied (sic) to extend the IVO that was due to expire on the 8/6/17.
i.Of course the Court issued the interim extension as that is their specialty and it’s well known that its (sic) easier to get an IVO from the Court than it is to get a Big Mac in a drive thru (sic).
The contempt that Mr Hogarth holds for both the Magistrates Court and Ms Scrivens herself is palpable in that paragraph.
Ms Scrivens’ 5 June 2017 application came before the Suburb M Magistrates Court on 26 February 2018.
Mr Hogarth decided to contest the application and the matter went to final contested hearing before the magistrate. Mr Hogarth cross-examined Ms Scrivens but declined to give evidence himself. At the end of the contest hearing, the Magistrate made a finding of family violence against him on the balance of probabilities, and made a five-year Intervention Order which will expire on 25 February 2023.
I note that a five-year Intervention Order is considerably longer than most Intervention Orders issued by the Magistrates Court of Victoria.
Mr Hogarth appealed that decision, but later abandoned the appeal, and the Order of 26 February 2018 stands.
Mr Hogarth sees Ms Scrivens’ obtaining Intervention Orders against him as evidence of her attempts to remove him from X’s life altogether, and at trial was very clear that he did not think Ms Scrivens needed an intervention order against him. His complete lack of insight into the reasons why she might have felt it necessary to protect herself from his barrage of unwanted communications is of considerable concern to the Court.
(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
It is always preferable, in my view, that orders made after a full trial are to be final orders.
In this case, X is now four years old and has been in the family law system for all but the first five weeks of his life. It is almost impossible to craft Orders that will apply until he turns 18.
In this case, neither party seeks Orders that will pertain until that time.
Mr Hogarth agrees to a sole parental responsibility order being made in favour of Ms Scrivens until X turns eight.
Ms Scrivens seeks Orders that X spend no time with his father until he reaches high school age.
Given the intractable disputes between these parents, it is difficult to imagine a future where X will never again be the subject of proceedings in a Family Law Court, but the Orders I make are intended to be final, at least until X begins his secondary education.
The question of whether it is possible for Mr Hogarth to refrain from further litigation before then (or from behaviour that forces Ms Scrivens to issue proceedings), is, as yet, unanswered, but the Orders I make are intended to be final orders for at least X’s primary school years.
(m) any other fact or circumstance that the court thinks is relevant.
I also take into account, and indeed cannot ignore the vitriolic and aggressive nature of much of Mr Hogarth’s communication, not only with Ms Scrivens, but with the professionals engaged to provide reports for the Court, the Independent Children’s Lawyer, the Court itself through his affidavit material and correspondence with the chambers of the three judges who have, at various time, had carriage of this matter, and Ms Scrivens’ lawyers.
The fact that he has been unable to refrain from making quite scandalous comments about the Independent Children’s Lawyer’s perceived “bias”, the recommendations of Ms F, Ms Scrivens herself, the Magistrates Court of Victoria, and the family law system in Australia in general, indicates a person who cannot hear criticism and is completely lacking in insight about the effects of his behaviour.
In his Psychiatric Assessment Report dated 21 April 2017, annexed to an Affidavit sworn by Dr D on 27 April 2017 and filed on 2 May 2017, Dr D describes Mr Hogarth thus:
While there is no evidence that Mr Hogarth is suffering from any acute psychiatric disorder that would significantly affect his capacity to parent X, he appears to have personality characteristics that make him rather inflexible and rigid in his demands. He shows little insight into the contribution of his own behaviour into the difficulty in establishing a cooperative co-parenting relationship with Ms Scrivens. As a result of his inflexibility he does not appear to understand the difference between a demand and a request, despite his apparently genuine wish to be an active parent in X’s life.
Dr D held to that view under quite vigorous cross-examination from Mr Hogarth at trial, and I accept that expert evidence.
In his affidavit affirmed on 7 May and filed on 9 May 2019, just three weeks before trial, the father deposes as follows in relation to the third family report:
Paragraph 10.
a. This family report is yet and unsurprisingly so another one side (sic) and jaded Family Report written by and a women for a women (sic), or alternatively put the extremist feminist left which toxically pollutes Family Law in this country, and this has been my experienced (sic) in this case.
b. This report is again another poorly written document which is highly unprofessional with the amount of bad spelling, typo’s. She can’t even get my partner Ms A’s name correct throughout the report.
c. There is considerable incorrect, conflicting, inconsistent and totally biased remarks littered throughout the report.
After complaining that Ms F had accused him of coercive and controlling behaviour when he had declined to allow Ms Scrivens to take X on an overseas trip, Mr Hogarth went on:
f. In previous affidavits in particular Trial Affidavit Dated 2018 (sic), Affidavit dated 24/1/19 item 6, I have been highly critical of Ms F’s conduct and reports and I claim her latest recommendations are a pay back (sic) due to ‘Apprehended Spite’ and Apprehended bias.
g. Ms F has continually failed and refused to view important video and photographic evidence I have provided and filed under affidavit. I (sic) deliberate ignorance of seeking truth in this matter.
h. I intend to take formal action against Ms F and will also consider legal action against her for the liable (sic) and defamatory accusation of Family violence having much impact on her recommendations and the potential loss of a relationship with my son.
i. This Family report writer has written 3 reports now, all three with serious flaws and failures in them as referred to above and all totally conflicting recommendations. Her recommendations do not reflect the best interests of the child or the child’s right to a meaningful relationship with his father or both parents for that matter, but she seems to fully support the best interests of the respondent in the case. She fails to consider the impacts of a young boy growing up without a father.
j. Ms F (sic) recommendations if followed by the court will only add X to the new ‘STOLEN GENERATION’ OF CHILDREN CREATED BY THIS Family law system in Australia.
k. I will dissect, elaborate and expose all of the faults in ALL 3 Family reports during Trial and cross-examination of Ms F.
l. Ms F was Subpoenaed to appear and provide documents on the 15/11/18. Whilst she filed an objection to this subpoena, she confirmed by email to me before lodging her objection, she would comply with the order. She still had a legal obligation to appear on this day and she failed to do so. She should be taken to task by the law.
In his trial Affidavit affirmed on 7 November and filed on 8 November 2018, Mr Hogarth deposes as follows in relation to Dr D’s psychiatric assessment of him:
19. PSYCIATRIC (sic) REPORT (PR) – Dr D
a. This is a brief statement of events and fact, I will dissect the PR in greater detail and further documentation for trial if and when required.
b. The respondent mother has continually made vexatious and scandalous allegations that I was mentally ill and would harm X and has demanded either psychometric or psychiatric assessment of me. With no evidence to substantiate this and my robust denial of such allegations I only agreed by consent in December to put at end to (sic) these disgusting false accusations.
c. Dr D found that there is no evidence to substantiate Ms Scrivens accusations and as such she should wear the cost of the report. Ms Scrivens was on a ‘witchhunt’
d. Dr D claims that I refused Psychiatric assessment as was not complying with the Family Report Orders dated 6/10/16. This is not correct those orders did NOT order such an assessment and it was only the orders of 6/12/16 that ordered Psychiatric assessment as it was done by Consent of the parties at that time. Dr D has clearly made incorrect statements here.
e. Dr D report contains much regurgitated rhetoric of Ms Scrivens affidavits
f. I find Dr D comments that I focused mainly on my relationship with Ms Scrivens untrue and odd in light of the fact that he was conducting the interview and asking the questions, I was merely answering his questions.
g. I find Dr D comments that I have the personality traits of someone with ‘Rigid thinking’ to be untrue and odd after making that assessment based on a 2 hr interview of someone he doesn’t know and never met before, and on someone who has a distinctive (sic) career as a professional. I could not be successful in my career if I was a rigid thinker. These comments are based purely after assessing Ms Scrivens (sic) affidavits alone as I did not supply any. An assessment based on one party’s evidence alone, evidence that at the least is highly questionable and lacking credibility.
h. I am astounded and disturbed by Dr D comments that the court should make orders of little time or no time with X if I cant (sic) accept that there is no other relationship with Ms Scrivens other than a ‘parenting’ one. Im (sic) am unsure how he has come to this conclusion because he has clearly ignored that I stated to him in the interview that I broke things off with Ms Scrivens (sic), I never intended to contact her again, her behaviour during our brief relationship was odd to say the least and also that I did not want this woman in my life however she is the mother of our child and I’m happy to work towards a cohesive co parenting relationship with her to create the best environment for X as possible. I cannot understand how he has made the conclusion and comments that he has.
i. For clarity and I hope all parties can now understand this for the last time, I DO NOT WISH TO BE AND I HAVEN’T WANTED TO BE IN A ROMANTIC RELATIONSHIP WITH MS SCRIVENS AND I WOULD RATHER LOSE MY SIGHT AND ALL FOUR LIMBS THAN BE IN THAT TYPE OF RELATIONSHIP WITH HER.[6] I do however wish we could learn to communicate better and put the past behind moved forward for X.
[6] Emphasis in the original.
In relation to Dr L’s report, which was filed on behalf of Ms Scrivens, Mr Hogarth had stated the following:
Paragraph 7. DR L REPORT
a.I received Dr L report via email on 5/10/18 via email from the respondent’s lawyers
b.I note in Dr L’s Credentials he is a practising Psychiatrist at “N”
a.(sic) I note that the Respondent’s step Father is a current/recent employee of “N”, Annexed hereto and marked ‘16’ Is a screenshot of Mr O Facebook page and note ‘Worked at ‘N’
c. I bring attention to the Affidavit filed by Dr L and his sign off stating… ” (sic) I hope this has been helpful Kind Regards Dr L” . To me this indicates a report written in order to assist one’s case and not a professional medial (sic) assessment document.
And later in the same paragraph:
o.This report is clearly written for a purpose, Mr O and Dr L both worked at “N”, most likely known to each other. This is a conflict of interest and perhaps a favour for a mate.
p.Ms Scrivens has gone to Dr L for a reason, to write a report to enhance her case, I am well aware that this is a common tactic of legal teams to find experts to write reports to favour a party’s case.
q. A report where one party tells their version of events and makes unsubstantiated allegations against another without reply is not reliable.
r. This report should be considered unreliable, vexatious and scandalous, and should be struck out.
When he was asked about that passage under cross-examination by counsel for the mother at trial, the following exchange took place:
Counsel for the mother: Now, you have a problem with Dr L’s (sic in transcript) report do you?
Mr Hogarth: The issues I’ve raised with Dr L’s report is that I believe Dr L is – consults at “N” where Mr O is also employed, or formerly employed.
Counsel for the mother: Now, Mr O is Ms Scrivens’ (sic in transcript) stepfather, correct?
Mr Hogarth: Yes, I haven’t finished what I was going to say.
Counsel for the mother: Well, I just need to break it down.
Her Honour: Just – yes.
Mr Hogarth: Sorry, furthermore – – –
Counsel for the mother: Well, just let me break it down firstly, because Her Honour is writing it down, and secondly, because we’re not all familiar with the names as you are. So – – –
Mr Hogarth: Furthermore, Mr O – Dr L’s report signs off – I’m sure if I needed to and wanted to go and find an expert to write a report – and all of the – a lot of the – much of the research I’ve done is it’s – one can go and get a favourable report.
Counsel for the mother: All right.
Mr Hogarth: I mean, at the end of the day, if I wanted to be sick tomorrow from work, I could probably go and get a doctor certificate. But – – –
Counsel for the mother: Even if you weren’t sick?
Mr Hogarth: But the point I’m making is that he signs off his report.
Counsel for the mother: Yes?
Mr Hogarth: Which is meant to be a medical report, but it says “I hope this helps”.
At that point, I attempted to reassure Mr Hogarth that expert report writers often write such things at the end of their reports and that I had always interpreted those statements as the expert hoping that the report has been helpful to the court. He did not appear convinced, repeating that his written view was his interpretation of what Dr L had written.
When counsel for the mother asked him if that was still his view of Dr L’s report, he replied: “Possibly”.
The above passages, taken either from Mr Hogarth’s own affidavit material or from the transcript of the trial, are only a few of the myriad examples of Mr Hogarth’s attitude to Ms Scrivens, to the Court, to the experts engaged to write reports for the Court, and to the family law system in general.
That he holds such beliefs is not so much a surprise. I am aware that there are many litigants who believe that the family law system in Australia is biased against men. What I take into account under this subsection of s.60CC(3) is that he thought it appropriate to place those views squarely in evidence before the Court.
Early in the trial, before any sworn evidence had been given, the following exchange took place:
Mr Hogarth: I would probably like to take the opportunity to – to apologise to the respondent mother for my part in why we’re here. I don’t think either of us can – can say that we’ve painted ourselves in glory, but there is a time to try and make that better.
Her Honour: Yes. There is. And that’s why we’re here.
Mr Hogarth: So, you know, a sincere apology to the reasons that we’re here and my part in that, and I hope one that – that she might take on board for X, not for me.
Unfortunately, that apology, which I have no doubt was sincere at the time, and which, it seemed to me, Mr Hogarth fully expected to be accepted, cannot make up for the almost three previous years during which he had criticised, pilloried and generally abused, insulted, belittled, and denigrated the mother of his son.
At the very commencement of the trial, during an exchange with the bench, Mr Hogarth said:
You know, they judge me about lack of insight. It’s very hard to get insight to someone when the door is shut, and I am responsible for some of the reason that door is shut. I don’t shy away from that.
Mr Hogarth then spent the entire trial blaming anyone but himself for the predicament in which he finds himself.
Conclusion B:
When I consider all the above evidence and legal principles, I find that it is in X’s best interests to continue to have a relationship with his father, but because of the nature of the conflict between his parents, and his father’s apparent inability to refrain from harassing and abusing his mother, that time should be limited to one day per fortnight and two other special days per year, and the orders I make will be very clear and detailed so that there can be no uncertainty about the parameters of that time.
Issue C: Whether the father ought to be the subject of a vexatious proceedings order under s102QB of the Act.
S.102Q(1) of the Act states:
vexatious proceedings includes:
(a)proceedings that are an abuse of the process of a court or tribunal; and
(b)proceedings instituted in a court or tribunal to harass or annoy, to cause delay or detriment, or for another wrongful purpose; and
(c)proceedings instituted or pursued in a court or tribunal without reasonable ground; and
(d)proceedings conducted in a court or tribunal in a way so as to harass or annoy, cause delay or detriment, or achieve another wrongful purpose.
vexatious proceedings order means an order made under subsection 102QB(2).
S.102QB states:
MAKING VEXATIOUS PROCEEDINGS ORDERS
102QB(1) 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 tribunal; 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.
102QB(2)The court may make any or all of the following orders:
(a)an order staying or dismissing all or part of any proceedings in the court already instituted by the person;
(b)an order prohibiting the person from instituting proceedings, or proceedings of the particular type, under this Act in a court having jurisdiction under this Act;
(c)any other order the court considers appropriate in relation to the person.
102QB(3)The court may make a vexatious proceedings order on its own initiative or on the application of any of the following:
(a)the Attorney-General of the Commonwealth or of a State or Territory;
(b)the appropriate court official;
(c)the person against who another person has instituted or conducted vexatious proceedings;
(d)a person who has a sufficient interest in the matter.
102QB(4)The court must not make a vexatious proceedings order in relation to a person without hearing the person or giving the person the an opportunity of being heard.
102QB(5) An order made under paragraph (2)(a) or (b) is a final order.
102QB(6) For the purposes of subsection (1), the court may have regard to:
(a)proceedings instituted (or attempted to be instituted) or conducted in any Australian court or tribunal; and
(b)orders made by any Australian court or tribunal; and the person’s overall conduct in proceedings conducted in any Australian court or tribunal (including the person’s compliance with orders made by that court or tribunal);
including proceedings instituted (or attempted to be instituted) or conducted, and orders made, before the commencement of this section.
The mother’s application for an Order under s.102QB(2) is found in her Further Amended Response filed on 18 October 2018, which reads, at paragraph 10:
Pursuant to s102QB(2) of the Family Law Act 1975, the applicant be prohibited from commencing further proceedings under the Family Law Act 1975 without first obtaining leave of the court.
Counsel for the mother does not appear to have mentioned that application during the trial, but at its conclusion, just before I gave judgement on the issue of costs from previous proceedings, she reminded the Court that her client was seeking “a vexatious litigant order under section 102QB and that will be the subject of submissions”, and that that application was “maintained”.
That is, Mr Hogarth was on notice from 18 October 2018 that the mother sought an order under s.102QB(2) of the Act, and he was reminded of that application at the very end of the trial.
The court is satisfied, therefore, that he has had the opportunity to be heard on this issue.
The mother filed her final submissions on 3 June 2019, in which she states that one of the orders she seeks is “a section 102QB vexatious proceedings order under the Family Law Act [”the Act”] against the Father”.
Under the heading “Issues to be determined”, the mother states, inter alia: “d. Is the Father a vexatious litigant such that an order under section 102QB of the Family Law Act is required?”
The mother’s final submissions do not otherwise specifically refer to the order sought under s.102QB.
However, in summarising her evidence, the mother states as follows:
22. It is the Mother’s evidence, and the list of applications in a case filed by the Father supports this, that the Father will not abide any order or recommendation with which he does not agree. He has not attended counselling, completed a parenting course or paid the setting down fees for trial. He did not pay Court ordered costs or confine his affidavits as required to do so (sic). The Father has asked the ICL to be discharged, an earlier Judge to be recused and lodged appeals against a Registrar’s decision and the intervention order. He has accused the mother of lying, getting people to lie for her, misleading the Child Support Agency [sic] about her income and of playing the victim. His affidavit material is littered with negative commentary about the Mother and her personal character. He alludes to her having many men of a ‘type’ in her life, having unresolved childhood issues, having a history of mental illness and of being a flight risk. None of these concerns withstand any scrutiny.
Mr Hogarth filed his final submissions on 17 June 2019.
In that document, the father states the following under the heading “Vexatious proceedings”:
68. The father has commenced these proceedings to see his sone (sic) and its (sic) highly likely that if he didn’t he may have never seen X.
69. Applications in a case have been filed by the father only to spend more time with X and most of these were at times when Mention Hearings were already scheduled.
70. The father has not made any vexatious applications and is not a vexatious litigant and there are no grounds to find as such.
71. It is the mother that has filed IVO application (sic) in other Jurisdictions.
In his document entitled “CLOSING SUBMISSIONS ON BEHALF OF INDEPENDENT CHILDREN’S LAWYER”, counsel for the Independent Children’s Lawyer argues as follows:
11. The father’s conduct of court proceedings in both the family law courts and the Magistrates Court has been problematic. He is extremely mistrustful and resentful of the legal system and the role of the lawyers, experts and judges within it. He has elected to conduct the proceedings on his own behalf without the benefit of legal representation. The consequences of those two circumstances have been the proceedings have been prolonged and complicated. Inadmissible, prolix and confusing material has been submitted to the court. His tone has often been bombastic, hostile and vitriolic. However, none of the circumstances amount to family violence in and of itself. They have no doubt increased the financial and emotional burden of these proceedings on the mother. However, the only remedy for that conduct is a costs order – some costs orders have already been made in favour of both the wife and the ICL – or possibly an order under Section 102QB.
No further mention of s.102QB is made in the Independent Children’s Lawyer’s written submissions.
Mr Hogarth filed a document headed “RESPONSE TO FINAL SUBMISSION BY ICL COUNCEL (sic)” on 11 July 2019. He filed that document pursuant to Orders made on 29 May 2019.
Mr Hogarth does not directly address the mother’s application for an order under s.102QB in that document, although he does say, at paragraph 11:
There have been a number of problematic issues throughout these proceedings in this dispute which have prolonged proceedings, however this cannot be solely apportioned to me and in fact a number of problems have been caused by the lawyers involved and the associated professionals.
I concur with the description by counsel for the Independent Children’s Lawyer set out in paragraph 240 above in relation to the father’s conduct in these proceedings.
However, there is only one matter under s.102QB(2) relevant to this case about which the court must be satisfied.
That is, the court must be satisfied that “a person has frequently instituted or conducted vexatious proceedings an Australian court or tribunals”.
In order for the proceedings to be declared vexatious, they must satisfy one of the four definitions set out in paragraph 228 above, and I will deal with each of those in turn.
First, to be “vexatious proceedings”, those proceedings must be an abuse of the process of the court.
Mr Hogarth is X’s father. He has every right to seek parenting orders in relation to X. That he has done so is not, on its own, an abuse of the process of the court.
These proceedings are the first set of proceedings in relation to X’s care arrangements.
Every Application in a Case the father has filed has sought further time with X, and while some of those applications might be considered misconceived or misguided, they do not amount, in my view, to an abuse of process.
Second, the proceedings must have been instituted “to harass or annoy, to cause delay or detriment, or for another wrongful purpose”.
In other words they must have been instituted for the purpose of harassing, annoying, causing delay or detriment, or for another wrongful purpose – and in support of that view, I refer to the wording of “another wrongful purpose”, which indicates that harassment, annoyance, delay or detriment must have been the initial purpose of the proceedings being instituted.
In all the evidence before the court, it is clear that these proceedings have been perceived by Ms Scrivens as harassing, annoying, or causing delay or detriment. That has been the result of these proceedings.
However, and despite the Court’s criticism of Mr Hogarth throughout this judgment, the Court is not satisfied that the proceedings were instituted for the purpose of harassing, annoying, causing delay or detriment, or for any other wrongful purpose.
They were instituted for the purpose of establishing and developing a relationship with his son.
Third, the proceedings must have been instituted “without reasonable ground”.
Some of Mr Hogarth’s applications have been successful, and others have not, and as already stated, some have been misguided or misconceived. That does not mean that they have been instituted without reasonable ground, and I cannot see an unreasonable ground for that which Mr Hogarth has sought.
It has been the process and not the content of his conduct of the proceedings which has caused the Court considerable concern.
Conclusion C:
In all the above circumstances, the Court is not satisfied that Mr Hogarth has “frequently instituted or conducted vexatious proceedings” in this Court pursuant to s.102QB(1), and therefore, the court has no power to make an order under s.102QB(2).
Nevertheless, that finding relates only to the proceedings which are concluded by the making of the attached Orders, and were he to institute further proceedings without there having been a change in circumstance (See Rice v Asplund (1979) FLC ¶90-725), those proceedings might well be found to be vexatious.
Conclusion
The Court’s decision means that the parties will parent X in parallel rather than co-operation, which is usually considered the “second best” option for children of separated parents. That is most unfortunate, but it is the best option for X in circumstances where his parents are unable to communicate in any meaningful sense about his welfare.
There is little doubt in my mind that Mr Hogarth will see this outcome as yet another example of the biased nature of family law proceedings against men. He will almost certainly be aggrieved that the Court has not vindicated him in relation to each and every allegation levelled against him.
That is unfortunate, but Mr Hogarth would do well to seek professional counselling assistance to help him explore his attitude to and behaviour towards Ms Scrivens, because the methods he has used so far in attempting to build and maintain a close relationship with X, have resulted in X’s mother being seriously traumatised and, as a result, his time with his son will be severely limited.
I certify that the preceding two hundred and seventy-two (272) paragraphs are a true copy of the reasons for judgment of Judge Small
Date: 26 February 2020
- AGLC
- HOGARTH & SCRIVENS (No.2) [2020] FCCA 377
- Case
- [2020] FCCA 377
- Decision Date
CaseChat Overview and Summary
The court was tasked with determining how parental responsibility should be shared and whether the child should spend time with his father, given the high level of conflict between the parents. A key consideration was the mother's assertion that the father's conduct adversely affected her mental health to the point of impacting her parenting capacity. The court also had to assess the primary considerations under section 60CC(2) of the *Family Law Act 1975*, namely the benefit to the child of a meaningful relationship with both parents and the need to protect the child from harm.
In its reasoning, the court applied the principles of "meaningful relationship" as established in cases such as *Mazorski v Albright* and *Tait & Dinsmore*, emphasising the qualitative nature of such relationships over mere quantity of time. The court found that the child's relationship with his mother was undoubtedly meaningful, given her role as primary carer. While acknowledging that the child's relationship with his father had developed and could be considered meaningful, the court retained concerns about the father's ability to provide an appropriate role model. Regarding the protection from harm, the court noted the mother's allegations of persistent harassment and abuse by the father, which she claimed had severely impacted her mental health.
The court ordered that all previous parenting orders be discharged. The mother was granted sole parental responsibility, and the child was to live with her. Specific, limited time and communication arrangements were ordered for the child to spend with the father, including alternate Sundays, specific holiday periods, and Father's Day. The orders also included detailed provisions regarding changeovers, communication restrictions, notification of illness or injury, and prohibitions against denigrating the other parent or discussing proceedings in the child's presence. The father was also restrained from influencing third parties to act contrary to the orders.
Orders
Orders of the court
1.
All previous parenting orders in relation to the child X born in 2016 (“the child”) are discharged.
2.
The mother shall have sole parental responsibility for the child.
3.
The child shall live with the mother.
4.
The child shall spend time and communicate with the father as follows:
a) until the last Sunday of January in the year in which the child commences high school on each alternate Sunday from 9:00 a.m. to 6:00 p.m. commencing on 1 March 2020;
b) from the commencement of the school year in which the child commences high school, by agreement between the parties, and failing agreement by 30 June the previous year, the parties shall attend upon a Family Dispute Resolution Practitioner and make a genuine effort to come to agreement before instituting further proceedings in this or any other Court exercising jurisdiction under the Family Law Act 1975 (Cth) or any subsequent legislation dealing with the time children spend with their separated parents;
c) From 11:00 a.m. to 5:00 p.m. on Christmas Eve 2020 and in each alternate year thereafter, and from 11:00 a.m. to 5:00 p.m. on Christmas Day in 2021 and in each alternate year thereafter;
d) From 9:00 a.m. to 6:00 p.m. on Fathers’ Day each year; and
e) At other times that the mother in her sole and absolute discretion shall decide.
5.
Should Christmas Eve, Christmas Day, or Fathers’ Day fall on a Sunday when the child would otherwise be spending time with the father pursuant to paragraph 4(a) hereof, then in addition to the Christmas Eve, Christmas Day or Fathers’ Day time, the child shall spend time with the father on the first Sunday after that Christmas Eve, Christmas Day or Fathers’ Day from 9:00 a.m. to 6:00 p.m.
6.
Should Mothers’ Day fall on a Sunday when the child would otherwise be spending time with the father pursuant to paragraph 4(a) hereof, the father’s time shall suspend for that day, and the child shall spend time with the father on the following Sunday from 9:00 a.m. to 6:00 p.m.
7.
If the mother enrols the child in any extra-curricular activity that takes place on Sundays, the father shall ensure that the child attends that activity during his time with the child, and he shall be at liberty to remain at the activity to watch the child subject to any protocols or requests of the activity’s operator, and the mother shall not attend that activity on days when the child is spending time with the father pursuant to these Orders.
8.
Until the commencement of the school year in the year in which the child commences high school, changeover shall take place at the mother’s home at the commencement of the father’s time and at the McDonalds restaurant closest to the father’s home at the conclusion, and the father’s partner Ms A, and/or the paternal grandmother Ms B (“the changeover agents”), shall conduct changeover on behalf of the father, and the father is hereby restrained by injunction from attending at or being within 500 metres of the changeover venue at those times.
9.
If the child is too ill to attend his scheduled time with the father pursuant to these Orders, the mother shall inform the father by text message as soon as practicable, and, within 7 days of the scheduled time she shall provide to the father a medical certificate stating the child’s inability to attend for time with the father, and make-up time shall be provided from 9:00 a.m. to 6:00 p.m. on the next Sunday after the scheduled time period.
10.
The father shall be at liberty to send the child a birthday present each year via the paternal grandmother, or by ordinary prepaid post, and the mother shall provide to the father an address, not necessarily her own, to which the child’s birthday present might be sent, and the father shall not otherwise attempt to contact the child save in strict accordance with these Orders at any other time.
11.
The father is hereby restrained by injunction from contacting the mother at any time or by any means, including through third parties or the child, unless:
a) both of the changeover agents are unavailable to conduct changeover, in which circumstance he shall send the mother a text message no later than 48 hours before changeover informing her of that fact, and providing the names of three possible alternative changeover agents, each of whom shall be someone known to the child, and the mother shall choose one of those three people to conduct the next changeover and inform the father of her decision by text message no later than 24 hours prior to the changeover; or
b) he is unable to exercise his time with the child, in which case he shall inform the mother of that fact by sending her one text message immediately upon becoming aware that he is unable to exercise that time; or
c) the child develops an illness or suffers an injury while in his care that requires urgent professional medical assistance, in which case he shall immediately inform the mother by text message of all details including the name and contact details of any doctor, dentist or other medical or allied professional who is treating the child, and he shall inform any such medical or allied health professional that the mother has sole parental responsibility for making decisions about the child’s health and medical treatment and shall provide her telephone number to such medical or allied health professional; or
d) a member of his immediate family is hospitalised or dies, in which circumstance he shall advise the mother by text message on one occasion and one occasion only, and she, in her sole discretion, shall decide whether the child shall attend any hospital where the immediate family member is being treated, or the funeral of any immediate family member who has died.
12.
The parties are hereby restrained by injunction from:
(a) abusing, insulting, belittling, rebuking or otherwise denigrating the other or any member of the other’s family or household in the presence or hearing of the child, and from allowing him to remain in the presence or hearing of any third party who is engaging in such conduct;
(b) discussing these proceedings or any parenting disputes or issues in the presence or hearing of the child, save to explain any changes in his living arrangements to him as a result of these Orders, and from allowing him to remain in the presence or hearing of any third party who is engaging in such conduct;
(c) allowing the child to read, have read to him, or otherwise access any part of the Court’s Reasons for Judgment in this matter, or any document prepared for the purposes of these proceedings or tendered at trial.
13.
The mother shall notify the father as soon as practicable in the event of the child suffering any serious illness or injury which requires the child to be admitted to a hospital while he is in her care (“the notification”), and the mother shall decide in her sole and absolute discretion whether the father shall be permitted to attend at the hospital to visit the child, and in that regard:
a) The father shall ask whether he might visit the child on one occasion, and one occasion only, after he has received the notification, and he shall not attend at the hospital without the express consent of the mother first having been obtained in writing, including by text message; and
b) he shall abide by all requests of the mother and/or the hospital during such attendance, including leaving the hospital when asked.
14.
Each party shall advise the other of any medication prescribed for the child while in their respective care, including the dosage and frequency prescribed, and each shall ensure that such medication travels between their houses with the child, and that any such medication is taken in accordance with its prescription.
15.
The mother shall authorise any child care, kindergarten, school or extra-curricular activity in which the child is enrolled to provide to the father, at his expense, all information, notices, photographs, reports and like materials usually provided to parents.
16.
Subject to any protocols determined by the relevant educational institution or authority, and until the commencement of the year in which the child commences high school, the father shall be at liberty to attend the child’s child care, kindergarten or school on no more than one occasion per term in order to obtain information about the child’s progress, and he shall make an appointment with the child’s child care, kindergarten or school before attending.
17.
The father is hereby restrained by injunction from asking, persuading or otherwise influencing any third party, including his partner or any other member of his family, to do anything that he is prevented from doing pursuant to these orders.
18.
The Order of Judge Williams, dated 17 November 2016, appointing the Independent Children’s Lawyer is hereby discharged.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
There are two primary considerations set out in s.60CC(2) as follows: (2) The primary considerations are: (a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and (b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b). The meaning of the term “meaningful relationship” has been addressed in several cases that have come before this court and the Family Court of Australia. In an oft quoted passage from the judgment of Brown J in Mazorski v Albright [2007] FamCA 520, Her Honour said at paragraph 26: A meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitative one. That is, the meaningfulness of a relationship between a child and his/her parents is measured by the quality of the time spent and not by the amount of time. In Tait & Dinsmore [2007] FamCA 1383, Cronin J said, at paragraph 170:To be a meaningful relationship, it must be healthy, worthwhile and advantageous to the child… Those adjectives mean that children need their parents to lead by example about self-discipline. Children need to learn to develop the ability to relate with others. They need to learn about the privileges and responsibility which will devolve upon them as parents. Those are fundamental parts of the meaningful relationship. In this case, there is no doubt that X’s relationship with his mother is meaningful in every sense of the definitions set out by Brown J and Cronin J. She has been his primary carer for his whole life and from all reports, X is a delightful child. Reports from his child care centre and Ms F show him seeking out his mother when he is distressed and finding comfort in her care. From the evidence of Ms F, who had the significant advantage of seeing and assessing X and his parents on three separate occasions during the proceedings, X’s relationship with Mr Hogarth has developed over time such that it, too, can be called “important, significant and valuable to the child” and “healthy, worthwhile and advantageous to the child”, although the Court retains some concern about Mr Hogarth’s ability to provide a role model for X in the terms described by Cronin J in Tait & Dinsmore. As to the matters set out in s.60CC(2)(b), the issue is less clear cut. It is the mother’s case that Mr Hogarth has subjected her to a consistent and persistent pattern of harassment and abuse since before X was born which has all but crippled her mental health. That harassment has consisted of large numbers of text messages in a single day on the same topic, verbal abuse in writing about what he perceives as her refusal to allow him to see X or be a genuine father figure in his life, and persistent emails and letters to her lawyers and the Independent Children’s Lawyer, knowing that that correspondence would be sent to her.