Acres and Cannon (No 3)
[2016] FamCA 795
•20 September 2016
FAMILY COURT OF AUSTRALIA
| ACRES & CANNON (NO 3) | [2016] FamCA 795 |
| FAMILY LAW – PRACTICE AND PROCEDURE – Where the applicant father is subject to a s 102QB vexatious proceedings order – Where an application is made for leave to file an Initiating Application for parenting matters – Where the requirements of s 102QE have been met – Where the proceedings sought to be instituted are “vexatious proceedings” – Application for leave dismissed. |
| Family Law Act 1975 (Cth), ss 102Q, 102QB, 102QE, 102QF Federal Court of Australia Act 1976 (Cth), ss 37AO, 37AR Access to Justice (Federal Jurisdiction) Amendment Act 2012 (Cth) |
| Fuller v Toms (2015) 234 FCR 535 Gallo v Attorney-General (unreported, Supreme Court of Victoria, Starke J, 4 September 1984) Garrett v Commissioner of Taxation (2015) 147 ALR 342 Mathews v Queensland [2015] FCA 1488 Mulhern v Bank of Queensland Ltd (No 3) [2015] FCA 927 Jones v Skyring (1992) 109 ALR 303 Langmeil & Grange [2013] FamCAFC 31 Re Garrett [2016] FCA 703 |
| APPLICANT: | Mr Acres |
| RESPONDENT: | In the absence of the Respondent |
| INDEPENDENT CHILDREN’S LAWYER: | Independent Children’s Lawyer |
| FILE NUMBER: | HBC | 155 | of | 2009 |
| DATE DELIVERED: | 20 September 2016 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Hobart |
| JUDGMENT OF: | Rees J |
| HEARING DATE: | 30 August 2016 |
REPRESENTATION
| THE APPLICANT: | In Person |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr FitzGerald |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | FitzGerald and Browne |
ORDERS
IT IS ORDERED
That the Application in a Case filed 18 November 2015 seeking leave to file an Initiating Application be dismissed.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Acres & Cannon (No 3) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT HOBART |
FILE NUMBER: HBC 155 of 2009
| Mr Acres |
Applicant
And
| In the Absence of the Respondent |
Respondent
REASONS FOR JUDGMENT
Mr Acres (“the father”) is the father of the child S. The child was born in 2001 and will be 15 years old in December.
On 6 March 2014, the Family Court of Australia made orders pursuant to s 102QB of the Family Law Act 1975 (Cth) (“the Act”), prohibiting the father from instituting further proceedings under the Act in relation to the child without first having been granted leave to commence those proceedings pursuant to s 102QD of the Act (“the vexatious proceedings order”).
By an Application in a Case filed 18 November 2015, the father now seeks leave to file an Initiating Application seeking final parenting orders to the following effect:
1.That the applicant father be permitted to write a letter to the child [S] born … 2001 once in each six week period provided that:
a.That the letter referred to in Order 1 to not exceed 200 words;
b.That there may be up to two photos included in the letter;
c.That the letter be reviewed and agreed to by [Ms Z] (sic) of [K] Psychology prior to it being sent to her by the school counsellor at the school that the child is attending for that person to be invited to pass it to the child at school.
2.That the father be permitted to send the child a card on her birthday and Christmas Day by posting it to her home address by ordinary post.
In support of his application, the father relied upon an affidavit of Dr Z sworn on 18 November 2015, which annexed her report dated 2 November 2015, together with affidavits sworn by him on 7 December 2015, 5 November 2015 and 27 November 2015. The father also filed written submissions.
An Independent Children’s Lawyer (“ICL”) has been appointed for the child and the ICL also filed written submissions. The ICL opposed the granting of leave.
The mother did not participate in the proceedings.
A short Family Report (“the report”) has been prepared for the assistance of the Court. The child was interviewed by the Family Consultant on 8 June 2016.
The Family Consultant stated in the report:
[The child] disclosed that she had been anxious about coming to Court again and that this had impacted on her sleep and feelings of stress. She expressed some distress, as well and frustration and confusion, that there are new court proceedings, because she had believed that [the father] was not able to bring a further application for orders in relation to having contact with her.
The Family Consultant concluded that the child was expressing her own thoughts and had a good capacity to be introspective.
The Family Consultant reported that the child:
[W]as guarded and cautious about providing any personal information which she worried could be used by [the father] to identify places where he might try to cross paths with her and she was also concerned that “he might hang around” such places. She actively worries if he might turn up”.
She expressed anxiety about having any unplanned contact with [the father]. The child described a number of situations where such unplanned contact occurred and which had caused her anxiety; for example, once when she was walking to school, and once when she was riding her horse near her home. She stated that [the father] had driven past and beeped and waved at her.
[The child] expressed strong concerns that [the father] has recently attended at the Open Night at her high school, where he had spoken with her teacher and pointed her out in a class photo on the wall. His attendance at the Open Night has strongly confirmed to her that [the father] does not respect the boundaries that she wishes him to accept. Moreover, she had believed that “he’s not meant to go there” (meaning to her school).
The child told the Family Consultant that she continues to have contact with her paternal grandmother, that she enjoys those outings and that she can choose when the meetings occur and for how long. The child has also spent time with her paternal grandfather. The child told the Family Consultant she is pleased that her paternal grandparents have respected her view that she does not want to discuss her father with them. The child told the Family Consultant that she has made it clear to her paternal grandparents that she will only continue spending time with them if they respect her views and do not pressure her to talk about her father. The child told the Family Consultant that she also has contact with her paternal cousins and the father’s brother and his wife, her uncle and aunt.
When asked by the Family Consultant what she wanted the Court to know, the child clearly stated, “I just want no contact; I don’t want to receive letters.” The Family Consultant noted that the child was worried that, “if I give him a little bit, he’ll want more.” the child stated very clearly that, “I know if I want to have contact I can … if I wanted to receive letters, I’d write to him … I can’t see the point of a one way letter” (meaning for [the father] to write to her).
Asked by the Family Consultant what might change her views regarding having any contact with her father, the child said, “maybe if he actually respected that I don’t want any contact and stopped trying to push for things I don’t want.” The Family Consultant suggested to the child that her father currently has no way of letting her know that he stills loves her and cares about her, and the child said, “if he was to respect my decision it shows that he does care”.
The Family Consultant asked the child whether she might feel that her father did not care about her if he doesn’t try to make contact. The child responded by saying:
[N]o I don’t think so … it was my choice not to see him in the first place, therefore I won’t think he didn’t love me. If he respected my choice, I’d think he cared more … he’s done all these things and I don’t want any more contact with him … every time he does something, it makes me feel unhappy and stressed … and there is more reason not to see him.
The child told the Family Consultant, “I know at any time I want to have contact, I can.” The Family Consultant stated that the child’s perception of her father and her experiences of him have changed as she has become older. The child now expresses a lack of confidence that her father is going to change from the difficult person that she has experienced. The child said to the Family Consultant, “I know what I want and I want people to respect that.”
The Family Consultant concluded:
[The child] presents as being a settled and happy young woman. She has a full and active life. Having to give consideration to further Court proceedings, or to having some limited contact from her father, is upsetting and distressing for her. [The child] wants the prospect of making any contact with her father to be solely at her discretion.
The possibility of engaging in further therapeutic or supportive counselling was discussed with [the child] as an option that she might consider when she is older and when she may feel more ready to manage a relationship with her father.
No counselling is recommended at present.
THE EVIDENCE OF THE FATHER
In support of his application for leave to file the Initiating Application for parenting orders, the father deposed that since the vexatious proceedings order was made on 6 March 2014, he has attended counselling with Dr Z to address the concerns that were raised in the judgment about his behaviour.
In his affidavit sworn 5 November 2015, the father deposed, “I have come (sic) more aware of my strong personality and how my intensity and pushy ways have contributed to and caused the current situation. Therefore I do not seek any direct contact with the child or any telephone communication with her. Just a letter.”
The father further deposed:
I have gained some insight into my behaviours and how they caused both [the child] and her mother to become anxious. I am hopeful that some limited communication via a letter will allow [the child] in a safe non invasive way (now that she is older and has not seen me for over two years) to be aware that I still care about her. I will be continuing to engage with [Dr Z] so as to further understand and improve my behaviours.
Dr Z deposed on 18 November 2015, that she had had 23 sessions of therapy with the father. She expressed the view that:
During the course of therapy [the father] has accepted that, at times, his behaviour towards others can be problematic. He has a greater awareness of how he can be demanding of others. He has a greater awareness of how his emotional state influences how he interacts with others. In therapy [the father] practices assertiveness skills and emotion regulation strategies and he reports that he has been practicing these skills outside of therapy.
THE LAW
An application for leave to institute proceedings is made pursuant to the provisions of s 102QE:
Application for leave to institute proceedings
(1) This section applies to a person (the applicant ) who is:
(a) subject to a vexatious proceedings order prohibiting the person from instituting proceedings, or proceedings of a particular type, under this Act in a court having jurisdiction under this Act; or
(b) acting in concert with another person who is subject to an order mentioned in paragraph (a).
(2) The applicant may apply to the court for leave to institute proceedings that are subject to the order.
(3) The applicant must file an affidavit with the application that:
(a) lists all the occasions on which the applicant has applied for leave under this section; and
(b) lists all other proceedings the applicant has instituted in any Australian court or tribunal, including proceedings instituted before the commencement of this section; and
(c) discloses all relevant facts about the application, whether supporting or adverse to the application, that are known to the applicant.
(4) The applicant must not serve a copy of the application or affidavit on a person unless an order is made under paragraph 102QG(1)(a). If the order is made, the applicant must serve the copy in accordance with the order.
The father has complied with the provisions of s 102QE.
The application is determined according to the provisions of s 102QF:
Dismissing application for leave
(1) The court may make an order dismissing an application under section 102QE for leave to institute proceedings if it considers the affidavit does not substantially comply with subsection 102QE(3).
(2) The court must make an order dismissing an application under section 102QE for leave to institute proceedings if it considers the proceedings are vexatious proceedings.
(3) The court may dismiss the application without an oral hearing (either with or without the consent of the applicant).
(4) The court may make an order under this section in Chambers.
The issue before the Court therefore is whether the proceedings which the father wishes to institute are vexatious.
“Vexatious proceedings” are defined in s 102Q of the Act to include:
(a) proceedings that are an abuse of the process of a court or tribunal; and
(b) proceedings instituted in a court or tribunal to harass or annoy, to cause delay or detriment, or for another wrongful purpose; and
(c) proceedings instituted or pursued in a court or tribunal without reasonable ground; and
(d) proceedings conducted in a court or tribunal in a way so as to harass or annoy, cause delay or detriment, or achieve another wrongful purpose.
Sections 37AQ, 37AR, 37AS and 37AT of the Federal Court of Australia Act 1976 (Cth) (“Federal Court Act”) are written in identical terms as sections 102QD, 102QE, 102QF and 102QG of the Family Law Act.
In Fuller v Toms (2015) 234 FCR 535 (“Fuller”), the Full Court of the Federal Court said at [31], of the purpose of s 37AO (emphasis added):
Section 37AO of the Federal Court Act empowers a court to balance the right of one individual of access to justice with other rights namely, a correlative right on the part of the present respondents to finality and the separate right of other individuals also to access this Court. It is for this Court, the present manifestation of a recognition by the Australian Parliament, the origins of which may be traced to an earlier recognition by the United Kingdom Parliament, via the Vexatious Actions Act 1896 (UK) (59 & 60 Vict. C. 51), of a need for a power to effect just such a balance.
In Gallo v Attorney-General (unreported, Supreme Court of Victoria, Starke J, 4 September 1984) the Victorian Supreme Court said, of the meaning of the word “vexatious”:
In the light of the mischief to which the section is directed, however, it seems to me that the word “vexatious” is not in this context the term of art and is an omnibus expression, which includes proceedings which are scandalous which disclose no reasonable cause of action, which are oppressive, which are embarrassing, or which are an abuse of the process of the court. All of such and similar proceedings, in my opinion, fall within the meaning of the word “vexatious” in the statute.
The above passage has been adopted with approval in a number of decisions of the Federal Court as a proper expression of the meaning of the word “vexatious” as it is used in the Federal Court Act: Garrett v Commissioner of Taxation (2015) 147 ALD 342, 344 (Pagone J); Mathews v Queensland [2015] FCA 1488, [87] (Reeves J); Mulhern v Bank of Queensland Ltd (No 3) [2015] FCA 927, [8] (Gleeson J).
In Jones v Skyring (1992) 109 ALR 303, at 309 – 310, Toohey J said that the test for whether proceedings are vexatious was properly characterised in Hutchison v Bienvenu (unreported, High Court of Australia, Walsh J, 19 October 1971) as “not simply a subjective one”. His Honour continued:
In expressing that view Walsh J endorsed (at p 11) what Ormerod LJ had said in In Re Vernazza [1960] 1 QB 197, 208:
[T]he question is not whether [legal proceedings] have been instituted vexatiously but whether the legal proceedings are in fact vexatious.
That question is one for the court to decide on the facts; it is not decided by reference to whether the person against whom an order is sought was acting maliciously or in bad faith. So, in deciding the present application, it is not to the point that Mr Skyring may believe and believe strongly in his view of s 115 of the Constitution and the associated points he wishes to agitate.
The Full Court of the Family Court of Australia took a similar view in Langmeil & Grange [2013] FamCAFC 31, [24], where their Honours said:
Of course, as was pointed out in McNamara and Rose [2007] FamCA 529 frivolous or vexatious proceedings may divert the Court’s resources away from meritorious disputes. It is a serious matter to deprive a person of access to the courts, a point made by Kirby J in Re Attorney-General (Cth); Ex parte Skyring (1996) 135 ALR 29.
Further, in determining that a proceeding is vexatious, it is not necessary for the Court to identify that any particular party to the proposed litigation would be troubled, vexed or harassed by the proceedings. The legislation is protective not only of the interests of persons who may be joined in or otherwise directly or indirectly affected by a vexatious proceeding, but also of the public interest in the proper administration of justice more broadly. So much was recognised by the Full Court of the Federal Court in Fuller by its reference to the right of other litigants to access the resources of the Court, which, of course, are not unlimited.
In Re Garrett [2016] FCA 703, the Federal Court held that:
[19]An application for leave under s 37AR [equivalent to s 102QE of the Act] will necessarily be determined against the legal history of the Court already having made findings (whether or not embodied in declarations) to the effect that the applicant is a person who has frequently instituted or conducted vexatious proceedings in Australian courts or tribunals … That history may, in a given case, be a relevant and weighty circumstance in determining whether the new proceeding sought to be instituted by the applicant is also to be regarded as vexatious. This is particularly so where the new proceeding appears to be a further attempt by the applicant to agitate an issue already determined, or is otherwise a new manifestation of the same prior obsessions which formed the background to the vexatious proceedings order made against the person in the first place.
Those decisions provide guidance to the determination of whether the application which the father proposes to institute is vexatious. It is useful to consider each subsection of the definition in s 102Q, remembering that some can overlap. It is not however, necessary to consider subparagraph (d) of the definition since no proceedings are being conducted.
Are the proceedings an abuse of the process of the Court?
The Initiating Application which the father proposes is an application for orders which are within the power and the jurisdiction of the Court to make. They are parenting orders within the provisions of the Act. The application does not constitute an abuse of process.
Are the proceedings instituted to harass or annoy, to cause delay or detriment or for another wrongful purpose?
If this criterion were solely subjective, it would be simple to determine that the father seeks to institute the proceedings because he believes that the making of the orders he seeks would be in the child’s best interests.
However, it cannot be solely subjective as the legislation is protective of the public interest in the proper administration of justice more broadly, as was recognised by the Full Court of the Federal Court in Fuller by its reference to the right of other litigants to access the limited resources of the Court.
Are the proceedings instituted without reasonable ground?
Section 102QE was inserted by the Access to Justice (Federal Jurisdiction) Amendment Act 2012 (Cth). The Explanatory Memorandum to the enacting Bill states, at paragraph 240:
The definition of vexatious proceedings is set out in section 102Q, and includes proceedings that are an abuse of process, proceedings instituted or conducted in a way to harass or annoy, to cause delay or detriment, or for another wrongful purpose, and proceedings instituted or pursued without reasonable ground. This will incorporate proceedings that have no reasonable likelihood of success.
The proposed application is for parenting orders. If heard, it would be considered in the matrix of the factors mandated in s 60CC of the Act. Although the best interests of the child are not the primary consideration in the determination of this application for leave, her best interests underlie the consideration of the s 60CC factors.
The most significant matter to be considered is the weight which would be given to the child’s expressed views if the application were heard.
These considerations must commence with the findings in the judgment of Benjamin J of 6 March 2014, where his Honour found:
18.I accept that the child’s views are hers. I am satisfied that given the age and maturity of this particular child her views should be given considerable weight.
His Honour accepted the evidence of the Family Consultant who reported:
The information disclosed by [the child] impressed to be her considered views based on her own recall of events and experience. In no sense did [the child] impress to be alienated because of undue influence by her mother. However, it is likely that she is closely in line with her mother and [the child] acknowledges that she becomes stressed when her mother is stressed. That is, [the child] manages better emotionally when the mother is not stressed. It was evident that if the time with the father was occurring successfully, [the child] would feel supported by her mother and having such time with him. There was no evidence of any unintentional negative evidence on [the child] from [the mother].
His Honour also accepted the evidence of the Family Consultant when she said:
… She [the child] has now made a decision to stop seeing him [the father] despite this fear. [The child] said that she stopped seeing her dad because ‘he doesn’t seem like a very nice person, we did get on, kind of, but from the past, he just lies, yells and gets angry’. She said the trigger for her decision was when ‘he started taking mum to court again’. She said ‘I just got sick of it happening’. She stated ‘I think it should be my decision … in a few years or something I might decide I will see him. When I am older I will decide. I want to have the control, if I see him and when I see him’.
His Honour stated:
298.The parties have been involved in regular parenting litigation since December 2006 (at which time the child was almost five) until now (when the child is aged about 12 years). More than half of the child’s life has been taken up in this litigation and conflict. I accept the evidence of [Dr W] and the Family Consultant that this conflict, mostly driven by the father, has had a detrimental impact on the emotional and psychological wellbeing of both the child and the mother.
The views now expressed by the child in 2016 are consistent with the views that she expressed in October 2013, when initially interviewed by the Family Consultant.
In his judgment of 6 March 2014, his Honour found:
328.The child is aged 12 and she is mature for her age and I accept that the views are hers and not a reflection of any views of the mother. There is no cogent evidence that the child has been coached in coming to form the views she has expressed.
329.The views expressed by [the child] are clear, cogent and forceful. The child is mature and has a clear level of understanding. I have given her views considerable weight.
The father placed reliance upon the evidence of Dr Z about the importance of the child knowing that her father still cares for and loves her. It is clear from the Family Report dated 8 June 2016 that the child is very aware that her father loves her and wishes to communicate with her. It is also clear that she finds that concept upsetting and distressing and wants the prospect of making any further contact with her father to be solely at her own discretion.
Having regard to the fact that the child is almost 15 years of age, that the father acknowledged in his written submissions that she is intelligent and articulate, and that in 2014 she was described as a mature child, I am of the view that the weight which would be given to the child’s expressed views in the hearing of the proposed application would be such that, without considering any of the other factors in s 60CC(3), the application would not succeed.
Accordingly, I find that the proposed proceeding would be instituted without reasonable ground and is therefore vexatious. The application of the father will be dismissed.
I certify that the preceding forty-nine (49) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 20 September 2016.
Associate:
Date: 20/9/2016
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