Ademis & Beauman
[2022] FedCFamC2F 1538
Federal Circuit and Family Court of Australia
(DIVISION 2)
Ademis & Beauman [2022] FedCFamC2F 1538
File number(s): MLC 2824 of 2022 Judgment of: JUDGE GLASS Date of judgment: 17 November 2022 Catchwords: FAMILY LAW – VEXATIOUS PROCEEDINGS – consideration of s 102QB –where the mother contends that the father’s pattern of issuing and withdrawing or discontinuing applications leads to a conclusion that those proceedings are vexatious. Legislation: Family Law Act 1975 (Cth), ss 4(1), s 102QB, 102Q Cases cited: Rilak & Tsocas [2020] FamCA 49
Safford & Kelso [2021] FedCFamC1F 165
Division: Division 2 Family Law Number of paragraphs: 38 Date of last submission/s: 4 November 2022 Date of hearing: 4 November 2022 Place: Melbourne Solicitor for the Applicant: Sayer Jones Counsel for the Applicant: Ms Borger Solicitor for the Respondent: Kenna Teasdale Lawyers Counsel for the Respondent: Ms Bastick ORDERS
MLC 2824 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR ADEMIS
Applicant
AND: MS BEAUMAN
Respondent
order made by:
JUDGE GLASS
DATE OF ORDER:
17 November 2022
THE COURT ORDERS THAT:
1.All extant applications be dismissed.
2.Any application for costs be filed by way of written submissions within 14 days.
3.Any reply to any application for costs be filed by way of written submissions within 28 days.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Ademis & Beauman has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE GLASS
Mr Ademis and Ms Beauman have been involved in both parenting and property proceedings in this Court and have also litigated in the Magistrates’ Court of Victoria in relation to Intervention Order and criminal matters.
The parties separated in June 2016 and have one child together, Y, born in 2008.
Ms Beauman now seeks that Mr Ademis be declared a vexatious litigant. She proposes that he either be restrained from instituting proceedings under the Family Law Act 1975 (“the Act”), or alternatively, be restrained from instituting proceedings under the Act unless he also pays to the Court the sum of $50,000 by way of security of costs.
Despite the relief sought being final in nature,[1] neither party sought to cross-examine the other.
[1] Family Law Act 1975 (Cth), ss 102QB(5).
Statutory framework
Pursuant to section 102QB of the Act, I relevantly have a discretion to grant the relief sought if I am satisfied that Mr Ademis has frequently instituted or conducted vexatious proceedings in Australian courts. Vexatious proceedings relevantly include those that are an abuse of process of a court, those that are instituted or conducted in such a way as to harass or annoy, to cause delay and detriment, or for another wrongful purpose, and those that are instituted or pursued without a reasonable ground.[2]
[2] Family Law Act 1975 (Cth), s 102Q.
Proceedings alleged to be vexatious
Ms Beauman relies on 7 applications made by Mr Ademis that she contends constitute vexatious proceedings.
Mr Ademis’ Initiating Application filed 17 April 2019
This was an application brought by Mr Ademis in relation to parenting matters. He deposes to bringing this application “after trying and failing to engage with [Ms Beauman] on parenting matters other than X’s spend time arrangements”.[3] He discontinued that application on 14 May 2019, on his evidence, after the parties “progressed discussions on X’s parenting arrangements”.[4]
[3] Mr Ademis’ Affidavit filed 28 October 2022, paragraph 15(a).
[4] Mr Ademis’ Affidavit filed 28 October 2022, paragraph 15(a).
Ms Beauman contends not that Mr Ademis’ application of itself is vexatious, rather it can be so characterised because it was one of several applications that Mr Ademis filed but did not pursue. She cites the following passage from the first instance decision in Safford & Kelso:
In my view, having regard to that chronology, and in particular the father’s history of filing applications and then failing to prosecute them, I am satisfied that he has abused the court’s processes. I am also satisfied that his conduct in making no less than three applications, causing them to be served and then discontinuing the proceedings is conduct that has harassed and annoyed the mother and likely caused her significant distress, particularly in the context of her suffering symptoms of post-traumatic stress disorder as a result of her experience of family violence. [5]
[5] [2021] FedCFamC1F 165 at [119].
Ms Beauman accepts that the circumstances of this case are not factually similar to those in Safford & Kelso, but relies on the case in support of a submission that a pattern of issuing and withdrawing applications may lead to the conclusion that those proceedings are vexatious.
It will accordingly be necessary to return to a consideration of whether such a pattern of behaviour has the consequence that applications Mr Ademis has made and either withdrawn or discontinued, are vexatious.
However, it is significant that Ms Beauman does not submit that this application, taken on its own, can be characterised as vexatious. I find no basis to conclude otherwise and accept Mr Ademis’ submission that it fundamentally sought appropriate relief.
In relation to its discontinuance, there is force in Mr Ademis’ submission that were he to have continued the application in circumstances where the parties had progressed their discussions, he would have been appropriately criticised for doing so. It is difficult to see how, in that context, the application could properly be characterised as vexatious.
Mr Ademis’ Intervention Order Application filed 21 June 2019
Mr Ademis sought an Intervention Order by way of application filed 21 June 2019. Ms Beauman contends that it is an application made to harass or annoy, issued for a wrongful purpose, namely “retaliation” to Ms Beauman’s application for an Intervention Order, and that it was an abuse of process. She also appears to suggest it was brought without a reasonable ground.
Certainly, the narrative to the application refers at some length to Ms Beauman’s application that had been made on 6 June 2019. However, contrary to her submissions to this Court, it is an application that relies on allegations that are not merely historical. Mr Ademis alleges that Ms Beauman displayed contemporaneous conduct that he alleges was emotionally and psychologically abusive of X. The application led to the making of an ex parte Interim Intervention Order protecting X from being subjected to family violence from his mother. It was an application that was clearly assessed to have a reasonable basis by the Court determining that interim application. I do not conclude otherwise.
Both parties’ applications for Intervention Orders were withdrawn consensually upon agreement being reached in relation to arrangements for X. I am not satisfied that Mr Ademis’ application was merely retaliatory and thereby issued for a wrongful purpose.
Ms Beauman again sought to characterise the application’s withdrawal as part of a pattern of behaviour that renders it vexatious. Conceptually that submission is difficult to divorce from the fact that both parties had filed applications in the Magistrates’ Court that had led to the making of interim Orders, which applications were resolved by an agreement that also extended to arrangements for X. Again, Mr Ademis had not initiated those proceedings and would surely have been criticised had he sought to continue their prosecution given the apparently appropriate agreement reached between the parties.
Mr Ademis’ Application in a Case filed 27 June 2019
By the time of this application, substantive parenting proceedings initiated by Mr Ademis were on foot in relation to which no vexatious criticism is now made by Ms Beauman. The application was made at a time when Ms Beauman was out of Australia having left X with his father. His application sought interim orders for X to live with his father, to continue attending his existing school and that he be placed on the Airport Watch List. None of that relief sought was the subject of criticism by Ms Beauman.
The application also sought an order that X spend professionally supervised time with his mother. Ms Beauman contends that it was pursued without reasonable ground, giving the prior long standing agreement for X to spend equal time with each of his parents.
Whilst proceedings are relevantly defined to include “an incidental proceeding in the course of, or in connection with, a proceeding”,[6] I do not accept that an otherwise meritorious application becomes vexatious by the inclusion of an unmeritorious component in the relief it seeks. I am unable to conclude that the proceeding comprising the application as a whole was pursued without reasonable ground.
[6] Family Law Act 1975 (Cth), ss 4(1).
Applications in a Case filed 10 and 12 August 2020
By these applications, Mr Ademis sought to join various third parties to the property proceedings then substantively before the Court for determination. Those applications were unsuccessfully prosecuted on 3 September 2020.
Mr Ademis had previously sought to subpoena material from some of the third parties and confirmed during the hearing on 3 September 2020 that he was seeking to address what he considered to be continuing inadequate disclosure. As is clear from the Court’s reasons, the joinder applications were misguided and “ill-founded”.[7] They resulted in costs orders being made in favour of Ms Beauman and the represented third parties.
[7] Exhibit R1, page 388 at [16].
Significantly, on 3 September 2020, the Court found that the proceedings were “not quite vexatious, but quite cumbersome and have caused the parties’ [sic] enormous cost”,[8] having noted that the word “vexatious” “might be a little bit strong”.[9] Ms Beauman contends that characterisation of the proceedings should not be given substantial weight as there was then no application before the Court for Mr Ademis to be declared a vexatious litigant. However, as Mr Ademis submits, the Court may make a vexatious proceedings order on its own initiative.[10]
[8] Exhibit R1, page 389 at [19].
[9] Exhibit R1, page 388-389 at [17].
[10] Family Law Act 1975(Cth), ss 102QB(3).
I accept there may be no bright line demarking the distinction between a merely misguided application, and one that is vexatious, and that reasonable minds might differ as to that demarcation. However, I am not here satisfied, contrary to the conclusion reached by the presiding judicial officer, that the joinder applications were vexatious in the sense of having been instituted or pursued without reasonable ground. They were certainly misguided, but Mr Ademis was seeking disclosure of documents relevant to the substantive proceedings then on foot.
Contravention Application filed 14 August 2020
By this application, Mr Ademis alleged that Ms Beauman was, contrary to Orders of the Court, not in substantial attendance during X’s time with her in February 2020. Mr Ademis was granted leave to withdraw that application at an appearance before the Court on 19 October 2020. The Court made no order as to costs. Mr Ademis deposes to those Orders being the consequence of an agreement reached between the parties. Ms Beauman’s complaint about incurring costs overlooks the fact that she did not obtain an order for costs of the withdrawn application.
Ms Beauman contends, not that this application was made without reasonable ground, but rather that it comprises the pattern of behaviour of Mr Ademis filing applications and then withdrawing them.
Contravention Application filed 17 December 2021
By this application, Mr Ademis alleged that Ms Beauman had contravened several parenting orders, including providing for X to spend time with him. Pursuant to Orders made by the Court at an appearance on 25 February 2022, Mr Ademis was given leave to withdraw the application. Again, it is not suggested that the application was made without reasonable ground.
It is recorded in a notation to those Orders that the parties had then agreed to attend Family Dispute Resolution to discuss further parenting matters between them. No costs order was made consequent upon Mr Ademis’ withdrawal of the application.
Ms Beauman contends, not that the application is of itself vexatious, but that it acquires that character because of a pattern of behaviour.
Initiating Application filed 21 March 2022
Despite the making of final parenting orders on 28 October 2020, Mr Ademis filed an application on 21 March 2022 seeking to vary those Orders. He discontinued that application on 4 October 2022.
Ms Beauman contends that it was instituted without a reasonable basis, which I take to mean without reasonable ground. She contends that the issues raised in the application relating to overseas travel had been raised in the prior proceedings. Certainly that is so, with issues of international travel being squarely then before the Court as a result of Ms Beauman’s marriage to Mr EE. At the time the final orders were negotiated in October 2020, it was anticipated that Mr EE would be relocating to Australia. That outcome did not eventuate, with the consequence that he continues to reside in the Country AB. I am not satisfied that Mr Ademis’ application was made without a reasonable ground, particularly in light of the re-opening of Australian travel borders which had been closed at the time of the October 2020 Orders.
I am also not satisfied given that changed circumstance and the relative narrow compass of the application, that it is indicative of a refusal to accept the finality of the proceedings which may produce vexatious conduct.[11]
[11] Rilak & Tsocas [2020] FamCA 49 at [173].
Do the withdrawals of multiple applications render them vexatious?
As has been seen, Mr Ademis withdrew or discontinued five of the seven applications which are relied on by Ms Beauman. Ms Beauman contends that renders them vexatious. She relies on the fact that she has made previous allegations of family violence against Mr Ademis, including that he attended her property and sat for extended periods of time staring at her, and that he threatened to publish sexually explicit images of her prior to June 2019. I note that subsequent charges relating to Mr Ademis contravening Intervention Orders were recently withdrawn and struck out. Ms Beauman deposes to experiencing ongoing stress as a result of the legal proceedings and having difficulties managing other health problems as a result, including her bi-polar disorder.
Whilst I accept that Ms Beauman experiences the proceedings as stressful, I am not satisfied that has any substantial bearing on the outcome of this application. I am required to determine whether the proceedings are an abuse of process or intended or conducted so as to harass or annoy, to cause delay or detriment, or for another wrongful purpose.
Ms Beauman contends that the withdrawal of the applications need to be seen in the prism of Ms Beauman’s experience and vulnerabilities. However, I am not satisfied that doing so outweighs the reality that all but that last discontinuance were the consequence of agreement being reached between the parties. In some cases, those agreements substantively resolved issues in dispute, and in others, comprised agreements to negotiate or mediate further.
On one view, the fact that applications were brought before being discontinued when agreement was reached to negotiate or mediate might be seen as an abuse of process. However, here Mr Ademis deposes to the fact that negotiations had otherwise failed. Other than simply abandoning his position, no alternative course of action was available to him.
I am not satisfied that the cumulative effect of the withdrawal or discontinuance of multiple applications by Mr Ademis in those circumstances renders them vexatious in the relevant sense.
Conclusions
I am not satisfied that Mr Ademis has instituted or conducted vexatious proceedings. Accordingly, the discretion to grant the relief sought by Ms Beauman is not enlivened. Her application must be dismissed.
It is agreed that any costs applications will be dealt with by way of written submissions.
I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Glass. Associate:
Dated: 17 November 2022
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