Benson & Drury
[2022] FedCFamC1F 1041
Federal Circuit and Family Court of Australia
(DIVISION 1)
Benson & Drury [2022] FedCFamC1F 1041
File number(s): MLC 8683 of 2022 Judgment of: BERMAN J Date of judgment: 22 December 2022 Catchwords: FAMILY LAW – PRACTICE & PROCEDURE – Vexatious proceedings – Where there has been ongoing litigation since October 2015 – Where final orders were made in 2017 – Where the final orders have not diminished the father’s enthusiasm for litigation – Where the children are 17 and 14 years old – Where the amendments sought by the father to the final orders do not effectively change the orders – Where the litigation has been deleterious to the psychological, emotional and physical health of the children – Where the father recognises that the ongoing proceedings may well be a cause of the children’s struggle with mental health – Where the mother seeks vexatious proceedings orders – Consideration of s 102QB – Orders. Legislation: Family Law Act 1975 (Cth) ss 102Q(1), 102QB(2), 102QB(4), 102QB(6), s 102QE
Federal Court of Australia Act 1976 (Cth) 37AO
Access to Justice (Federal jurisdiction) Amendment Act 2012
Cases cited: Attorney General in and for the State of NSW v Gargan [2010] NSWSC 1192
Attorney-General v Wentworth (1988) 14 NSWLR 481
Benson & Drury [2019] FCCA 3472
Cannon & Acres [2014] FamCA 104
Carriel & Lendrum [2015] FLC 93-640
Drury & Benson (No 2) [2020] FCCA 250
Drury & Benson [2021] FCCA 1859
Fuller v Toms [2015] 234 FCR 535
Marsden & Winch (2013) FLC 93-560
Marsden & Winch [2009] 42 Fam LR 1
Official Trustee in Bankruptcy v Gargan(No 2) [2009] FCA 398
Rice & Asplund (1979) FLC 90-725
Division: Division 1 First Instance Number of paragraphs: 98 Date of hearing: 28 November 2022 Place: Adelaide Counsel for the Applicant: The applicant appearing self-represented Counsel for the Respondent: Ms Lewis Solicitor for the Respondent: D’Angelo Lawyers ORDERS
MLC 8683 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR BENSON
Applicant
AND: MS DRURY
Respondent
order made by:
BERMAN J
DATE OF ORDER:
22 december 2022
THE COURT ORDERS THAT:
1.Pursuant to s 102QB of the Family Law Act 1975 (Cth) (“the Act”), Mr Benson is prohibited from instituting further parenting proceedings under the Act in relation to B born 2005 and C born 2008 (“the children”) without first having been granted leave to commence those proceedings pursuant to s 102QD of the Act, provided that the father does not require leave to file a Contravention Application in respect of Orders made 9 August 2017.
2.The Amended Initiating Application filed 12 October 2022 be dismissed.
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 the pseudonym Benson & Drury has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
BERMAN J
INTRODUCTION
By Amended Initiating Application filed 12 October 2022, Mr Benson (“the father”), seeks to re-enliven parenting proceedings which had been resolved by final Orders made 9 August 2017 (“the final orders”).
The father and Ms Drury (“the mother”) are the parents of B born 2005 and C born 2008 (“the children”).
The final orders were made on 9 August 2017 following an extensive six day final hearing in February 2017.
In summary, the final orders provided for the parties to have shared parental responsibility for the children but that the children live with the mother and be able to relocate with her to Melbourne.
Paragraph 6 of the final orders is in the following terms:-
(6) Following relocation the children spend time with the father as follows:
(a)For three (3) long weekends in each calendar year at such times as may be agreed between the parties;
(b)In addition to sub-paragraph (a), for one (1) weekend in each school term from Friday afternoon to Sunday afternoon at such times as the parties may agree;
(c)For the Easter period from the afternoon on Maundy Thursday to the afternoon on Easter Monday at such times as may be agreed between the parties in odd numbered years;
(d)For the first half of school holidays including Christmas Day in even numbered years and the second half in odd numbered years;
(e)If the father shall elect to travel to Melbourne to spend time with the children and upon him giving reasonable notice of his intention to do so, for two (2) further weekends in each school term from Friday afternoon to Sunday afternoon at such time as the parties may agree;
(f)At such other times as may be agreed in writing.
Paragraph 6 was predicated upon an assumption that if the mother was permitted to relocate with the children to Melbourne, the father would remain living in Adelaide.
Paragraph 13 of the final orders provides for the time that the children would spend with the father either if the mother should elect not to relocate to Melbourne or that her offer of employment was withdrawn or does not eventuate or that the father shall relocate to live in Melbourne.
In summary, the final orders provide for the children to spend time with the father if he lives in Melbourne as follows:-
(a)From the conclusion of school on Friday to the commencement of school on the following Monday or 6.00 pm if the Monday is a non-school day and each alternate weekend thereafter;
(b)On the intervening Wednesday night from the conclusion of school until the commencement of school on the following Thursday morning and each alternate week thereafter;
(c)Excluding the Christmas holidays, for all other school holidays for one half of the holidays from 9.00 am on the mid Saturday of the school holiday period until 6.00 pm on the last Sunday of the school holiday period;
(d)For one half of the Christmas school holidays in each school period on a week about basis; and
(e)On other special occasions as specified in the orders or as may be agreed.
The father also seeks a change to the parental responsibility for the children in paragraph 2 of the final orders and to the arrangements for the mother to provide the father with information affecting the children’s health and education.
By Response to Initiating Application sealed 8 September 2022, the mother seeks to dismiss the father’s Initiating Application.
It is conceded by the father that his proceedings have no utility in respect of B, given he is 17 years of age, and that it is also a relevant consideration that C is now 14 years of age.
Background
The father contends that following the children’s relocation to Melbourne, B suffered from anxiety and depression which resulted in him withdrawing from school, extra-curricular activities and the ability to associate with acquaintances and friends for the majority of 2019 and 2020.
His return to school, according to the father, has been interrupted by sleep difficulties, migraine headaches and on occasion it is alleged that B has engaged in self-harm activities.
The father complains that from mid-2019, B would not spend time with him despite the father’s best endeavours.
The father concedes now that B is troubled, anxious and feels exhausted.
From 2021, there has been some better communication between B and his father and whilst he has spent some time with the father over weekends, he has not stayed overnight.
The father’s belief is that the mother has either actively prevented B from spending time with him or refuses to support his relationship with B.
The father’s relationship with C was considered by him to be qualitatively better than his relationship with B although from early 2020, the father’s history is that communication and ultimately time spent with C, was episodic and irregular.
At present, C does not spend time with the father and has had no contact with his paternal grandparents. The father’s concern is heightened by what he considers is a lack of communication by the mother in respect of the children’s psychological and mental health management.
The father states that in early 2021, he relocated to Melbourne to enable him to spend more extensive time with the children pursuant to his interpretation of paragraph 13 of the final orders namely, that if he was living in Melbourne then he would see the children each alternate weekend, overnight in the intervening week and half of the school holidays. The mother does not accept that the father has relocated to Melbourne given her understanding that the father’s current partner lives in Adelaide with her children. The father acknowledges that his partner’s children consider him to fulfil a parenting role.
There is some uncertainty as to the father’s precise living arrangements however, to some degree, whatever should regulate the future parenting arrangements, it is moot point given that neither of the children, but in particular C, spends time with the father.
The mother relies upon her affidavit sealed on 8 September 2022 in support of her Response seeking to dismiss the father’s Initiating Application and more generally the current proceedings.
The mother considers that the father’s proceedings are but one part in a long history of vexatious litigation undertaken by the father.
She refers to the judgment of Kari J in Benson & Drury [2019] FCCA 3472 where her Honour considered the threshold principle in Rice & Asplund (1979) FLC 90-725 (“Rice & Asplund”) and found that there had not been a significant change of circumstances but even if there had been, the children’s best interests would not be served by ongoing litigation.
The mother points to paragraph 19 of the judgment of Kari J in Drury & Benson (No 2) [2020] FCCA 250 (“Drury & Benson (No 2)”) which summarises my findings that the mother was the subject of family violence by the father.
The total of the mother’s legal fees are in excess of $200,000 with the father having multiple costs Orders made against him cumulatively of over $100,000.
The mother considers the father to be vexatious and that his unrelenting litigation has only exacerbated the children’s poor mental health prognosis.
Rice & Asplund principles
In Rice & Asplund, Evatt CJ said at 78,905:-
The principles which, in my view, should apply in such cases are that the court should have regard to any earlier order and to the reasons for and the material on which that order was based. It should not lightly entertain an application to reverse an earlier custody order. To do so would be to invite endless litigation for change in an ever present factor in human affairs. Therefore, the court would need to be satisfied by the applicant that, …, there is some changed circumstance which will justify such a serious step, some new factor arising or, at any rate, some factor which was not disclosed at the previous hearing which would have been material …
In Marsden & Winch [2009] 42 Fam LR 1 (“Marsden & Winch”), the Full Court said:-
50.Nevertheless, there are significant changes that occur and which do require a court to reconsider decisions previously made. Whether in a particular case a court should be willing to embark upon another hearing concerning the child and parent, or whether to do so would itself be demonstrably contrary to the best interests of the child, is a decision to be made in each particular case. How is that decision to be made? The court must look at:
(1)The past circumstances, including the reasons for the decision and the evidence upon which it was based.
(2)Whether there is a likelihood of orders being varied in a significant way, as a result of a new hearing.
(3)If there is such a likelihood, the nature of the likely changes must be weighed against the potential detriment to the child or children caused by the litigation itself. Thus, for example, small changes may not have sufficient benefit to compensate for the disruption caused by significant re-litigation.
In Carriel & Lendrum [2015] FLC 93-640, the Full Court said at 87,173:-
57.In a case where the principle in Rice & Asplund arises for consideration, there are two circumstances which are central to the decision. First, there will already exist a parenting order and, axiomatically, the terms of that order will reflect the best interests of the child/ren at the time of its making. Second, the fact that an order has been made reflects that disputation between parties to a parenting dispute, such dispute being inherently contrary to the best interests of the child/ren whilst it exists, has been brought to an end by a curial order. Those twin circumstances dictate the conclusion that it cannot logically be in the best interests of the child/ren to embark upon further litigation enquiring as to the child/ren’s best interests unless it is first demonstrated that a sufficient change in circumstances has occurred since the parenting order was made.
Orders sought by the father
The father seeks to vary paragraph 6 of the final orders by deleting the words “following relocation” and in replace of those words, inserting “if the father shall relocate to live in Adelaide”. It is apparent that the proposed change to paragraph 6 is unnecessary in circumstances where the order applies to the father living in Adelaide. There is no utility in the order that the father seeks.
The father further seeks that there be a change to paragraph 13 of the final orders such that the preamble to paragraph 13 be deleted with the intention that paragraph 13(b) should now apply in circumstances where the father purports to reside in Melbourne.
The father concedes that the order would only relate to C and not B.
A more careful consideration of the preamble to paragraph 13 highlights the words “if the father shall relocate to live in Melbourne…”. Paragraph 13 requires no amendment in circumstances where if the father is living in Melbourne, paragraph 13(b) provides for the time that C would spend with him.
As such, it may be that there is an argument as to whether the final orders have been contravened but that is a different application to whether the parenting proceedings should be re-enlivened.
A similar consideration arises in respect of paragraphs 2 and 3 of the final orders as to parental responsibility.
The father concedes that whilst he seeks for the parties to have equal shared parental responsibility for all major issues affecting the children including health and education, the amendment to paragraph 3 of the final orders would still enable the mother to make the final decision in relation to the children’s health and education subject to proper advice to the father in writing.
There is therefore a tension between the amendment sought by the father to paragraph 2 and his concession in respect of paragraph 3.
Even if the father was successful in the orders that he seeks, the outcome would be unchanged.
It is apparent that the proposed changes to the final orders would be a difference without a distinction and would have little or no purpose.
I am not able to make a finding as to why it is that the children resist spending any time with the father.
There are findings in my judgment and in the judgments of Kari J that are indicative of the children being adversely affected by the litigation and the ongoing conflict.
As is apparent, the litigation has been on foot since 2015 and it is only with some reluctance that the father is prepared to accept that at age 17 years of age, court orders are not likely to assist B either with his mental health difficulties nor with his fractured relationship with the father.
Given that there is no utility in the orders sought by the father, it is an easy finding that re- opening the proceedings will have the potential to exacerbate the already compromised psychological functioning of the children for no benefit.
It could not be considered that it is in C’s best interest for the Court to reconsider future parenting arrangements given that he will be 15 years of age in 2023. I propose to dismiss the father’s Amended Initiating Application.
Should a vexatious litigant order be made?
The mother seeks the following final order in her Response to Initiating Application sealed 8 September 2022:-
3.That pursuant to section 102QC(2)(b) of the Family Law Act, the Applicant be prohibited from instituting proceedings under the Family Law Act 1975 with respect to the Respondent.
It is likely that there has been a typographical error and that the mother seeks an order under s 102QB(2)(b) of the Act namely, an order prohibiting the father from instituting further parenting proceedings.
The mother seeks that a vexatious proceedings order be made against the father pursuant to s 102QB(2) of the Family Law Act 1975 (Cth) (“the Act”) which provides:-
(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 a 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.
Section 102QB(4) of the Act specifically prohibits the Court from making an vexatious proceedings order without giving the person subject to the proposed order an opportunity to be heard.
Part XIB was inserted by the Access to Justice (Federal jurisdiction) Amendment Act 2012 (Cth). The Explanatory memorandum says:-
213.[Section 102QB(2)] provides the court with a broad discretion to make orders tailored to fit the circumstances of the particular person or proceedings. Orders could range from preventing any proceedings being instituted under the Family Law Act 1975 by that person at all (subject to the leave of a court – see Division 3), to a narrower order preventing that person from bringing certain kinds of proceedings under the Act (see definition of proceedings of a particular type in section 102Q), or just dismissing particular proceedings instituted by that person. Paragraph 102QB(2)(c) also makes it clear that a court can choose not to dismiss vexatious proceedings brought by a person, but deal with that person in another way. Some examples of what this might be are set out in the note under that clause. Furthermore, a court could choose to deal with vexatious proceedings under its other general practice and procedure and case management powers (made clear by section 102QA), such as, for example, by striking out parts of a document filed with the court or ordering that a document be amended by a certain time.
In the decision of Cannon & Acres [2014] FamCA 104, the legislative pathway to a vexatious proceedings order is set out as follows:-
Vexatious proceedings order – the legislative pathway
440. The approach to this determination I have adopted is:-
i)In accordance with s 102QB(1), I will determine which proceedings constitute vexatious proceedings instituted or conducted in Australian courts or tribunals,
ii)If there have been vexatious proceedings, I will then determine whether such proceedings have been conducted or instituted frequently. In that consideration, I am able to have regard to proceedings instituted (or attempted to be instituted) or conducted in any Australian court or tribunal, orders made by an Australian court or tribunal and the person’s overall conduct in such proceedings, including compliance with orders made by that court or tribunal (including proceedings instituted (or attempted to be instituted) or conducted before the commencement of Part XIB of the Act); and
iii)If that threshold is met, I will then consider whether to exercise the discretion set out in s 102QB(2) of the Act and make a vexatious proceedings order. In considering whether to make a vexatious proceedings order I considered the scope and nature of the orders sought and made.
The mother supports her Application by reference to the history of the parties separating in November 2014 and that there has been ongoing litigation since October 2015.
The mother was granted an Intervention Order against the father on 4 August 2016.
At paragraph 19 of the mother’s affidavit of 8 September 2022, she seeks to summarise the findings as to the father’s conduct and behaviour in my judgment delivered in support of the final orders and of subsequent judgments delivered by Kari J, summarised as follows:-
(1)Physically assaulting the mother by choking her;
(2)Physically assaulting the mother in front of the children;
(3)Verbally abusing the mother;
(4)Emotionally abusing the mother;
(5)Threatening the mother;
(6)Tricking the mother into getting a false diagnosis from a psychologist to “gaslight” her;
(7)Damaging and destroying the mother’s belongings;
(8)Writing abusive and obscene words on walls;
and that following the parties’ separation:-
(9)Threatening to kill the mother;
(10)Engaged in stalking and other behaviour;
(11)Providing no financial assistance to the mother for the care of the children pending property being finalised in February 2020;
(12)The filing of multiple applications and relentless communication; and
(13)Referencing judicial findings that the father had no insight into his behaviour.
In response to the mother’s summary of the father’s behaviour, at paragraph 9 of the father’s affidavit of 22 November 2022, the father concedes that the findings “somewhat or generally reflect” what occurred.
At paragraph 10 of the father’s affidavit, he agreed that he did attend at a park near the home of the mother and children but was careful to ensure that he remained beyond the distances prescribed in the Intervention Order. The father understood that the mother did not like the arrangement but he did so in any event to maximise the opportunity that he would spend time with B.
The father also concedes that, in arranging for a person unknown to the mother to deliver a letter to C, his conduct constituted a breach of the Intervention Order and in mid-2022, following a plea of guilty, the father was placed on a 12 month good behaviour bond with no conviction recorded.
The mother also complains as to the applicant’s frequent use of legal proceedings and contends that the underlying intention by the father is to cause distress and harm to the mother underpinned by findings made by me at paragraph 322 of judgment delivered 9 August 2017 in the following terms:-
…. Whilst the physical interaction between the parties has now long passed and the mother has had the protection of an intervention order, some aspects of the father’s behaviour post-separation remain consistent with the definition and meaning of family violence. There is evidence of persistent levels of communication that the mother finds unrelenting. There is evidence of numerous text messages and email communication over short periods of time. It is not suggested that within the confine of each piece of communication that it is threatening, abusive or offensive. The father was aware of the mother’s distress at the frequency of the communication but ignored the desire for restraint. …
The mother highlights that during the course of the litigation, the father sent more than sixty separate letters to the mother’s solicitors.
Since the delivery of judgment and the making of the final orders on 9 August 2017, the father has filed six applications, not including the current application, including appeals which the mother considers where either unnecessary and/or unsuccessful.
On 29 November 2019, Judge Kari (as she then was) dismissed the father’s Rice & Asplund Application filed 14 September 2018 as well as the Applications in a Case filed 10 April 2019 and 12 July 2019.
The mother was awarded $21,886 in respect of the father’s failed Applications.
Following the broadly unsuccessful appeal filed by the father, on 7 December 2020 the father was ordered to pay the mother $15,000 in costs and on 24 June 2021, Judge Kari (as she then was) ordered the father to pay a further $65,000 in legal costs in relation to various property applications.
In Drury & Benson [2021] FCCA 1859, her Honour says as follows:-
18.Significantly, from my perspective, there are various occasions throughout the judgment where I formed views that were critical of the de facto husband’s conduct…. … I do not propose to comment now as to each and every occasion that I was critical of [Mr Benson] throughout his evidence; those issues are obvious on any plain reading of my decision.
Her Honour found that the father’s conduct made the litigation more complicated than it needed to be and that because the father’s conduct was so egregious, her Honour departed from the Federal Circuit Court scale.
The mother sets out at paragraph 49 of her affidavit of 8 September 2022 that there have also been proceedings in other jurisdictions, summarised as follows:--
(1)In mid-2015, the mother was granted an interim Intervention Order which was contested by the father until mid-2016 when a final order was granted by consent;
(2)In early 2020, the Department of Foreign Affairs and Trade advised the mother that her application for a passport for C to travel overseas was opposed by the father;
(3)In early 2020 the father complained about the conduct of the mother’s solicitor to the Legal Professional Conduct Commissioner. The complaint was dismissed on the basis that it was without merit;
(4)That the father reported the mother to the Department for Child Protection; and
(5)There have been ongoing proceedings concerning the payment by the father of Child Support with the father’s objection ultimately being heard, determined and dismissed in the Administrative Appeals Tribunal in early 2021.
As discussed, the father entered a plea of guilty in mid-2022 to breaching the Intervention Order.
The father broadly concedes the unrelenting nature of his litigation and unwarranted and uninvited communication however, he considers that when each piece of correspondence and application is considered separately they are directed to the best interests of the children and highlight the father’s concern as to the deleterious impact on the children of their emotional and psychological dysfunction.
It is a curious aspect of the father’s presentation that he includes at paragraph 16.3 of his affidavit of 22 November 2022, an extract from a report by Mr T, psychologist, which was annexed to his original trial affidavit filed 20 December 2015, and sets out as follows:-
In our last sessions he chartered a flow of interaction that made the possibility of his communication with [the mother] less likely. The realisation was, that his past violent and abusive behaviour contributed to her fear and anxiety. After separation his attempts at contact contributed to his distress and frustration. [the mother]’s anxiety became more intense and she regarded his attempts as controlling. She responded by not contacting him. He responded with more distress and frustration. [The father] considered this could be a cycle of distress and anxiety and agreed to limit his attempts to contact [the mother].
A significant issue between the parties is the extent to which the father does or does not have Melbourne as his principle place of residence.
The mother’s apprehension is that the father is seeking to perpetuate the mother’s anxiety and distress by maintaining the fiction that he resides in Melbourne rather than in Adelaide.
Whilst no finding was made, in Drury & Benson (No. 2), Kari J states the following:-
28.[The father] was cross examined at some length as to whether he had moved to Victoria in the period following the children’s relocation and prior to trial. From my perspective his evidence about a permanent move was largely unconvincing and I am not satisfied that at the time that he gave that evidence he had in fact moved to Victoria to live.
The father does not deny that he owns property in South Australia and that he has a long term partner who remains in South Australia with her two children. As discussed, part of the changes sought by the father to the final orders was to reflect the possibility that on his case, the father would return to live primarily in Adelaide.
The father has gone to significant efforts to establish that he now lives and works in Melbourne.
I am not required to make a finding as to where the father lives given that the issue is largely moot in circumstances where the father justifies the ongoing litigation by his acknowledgment that the children have engaged in behaviour consistent with suicidal ideation, self-harming behaviours and apparently diagnosed concerns regarding the children’s mental health.
Whilst I am not able to make a finding that following the relocation of the children to Melbourne, their demeanour and outlook improved and they were less resistant to attending school, the different interpretations by each of the parties are nonetheless consistent with a finding that the litigation has been deleterious to the psychological, emotional and physical health of the children.
In Fuller v Toms [2015] 234 FCR 535, the Full Court said as follows:-
31.Section 37AO of the Federal Court Act empowers a court to balance the right of one individual or access to justice with the 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.
Section 37AO of the Federal Court of Australia Act 1976 (Cth) and the following related sections are in similar terms to s 102QD of the Act.
Section 102Q(1) of the Act defines the term vexatious proceedings as follows:-
“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.
In Marsden & Winch (2013) FLC 93-560 (“Marsden & Winch”), the Full Court considered the test to determine whether proceedings are vexatious and at [150 – 151] their Honours referred to the decision of the Attorney-General v Wentworth (1988) 14 NSWLR 481. In Marsden & Winch the following was said: -
150. In Attorney-General v Wentworth Roden J said at [487]:
Meaning of “vexatious”
This is obviously a critical term, and can hardly be regarded as mere surplusage. If, as I believe must be the case, “habitually and persistently and without any reasonable ground institutes vexatious legal proceedings”, means something different from “habitually and persistently and without any reasonable ground institutes legal proceedings”, then relevant vexation cannot be found simply in the habitual or persistent manner in which legal proceedings are instituted, in a lack of reasonable ground for their institution, or in a combination of those factors. Something more is required. Similarly, the use of the words “without any reasonable ground”, implies that it would be possible to institute vexatious legal proceedings, and indeed to do so habitually and persistently, with reasonable ground.
151. His Honour continued:
A subjective element, such as malice, lack of bona fides, or ulterior motive seems to be both appropriate and necessary to give significance to the term “vexatious” within the context of s 84(1). It provides the required “something more” than is conveyed by the other words in the section, and it is consistent with legal proceedings instituted either with or without reasonable ground. If I were unaided by judicial authority, I would opt for such a construction here. I appreciate that, isolated from its context, the expression “vexatious legal proceedings” could mean “legal proceedings which vex”, irrespective of the motives of the person instituting them. A construction requiring a purely objective test might also be applied to the word when used in the expression “vexatious litigant”, which also appears in the section, although it would sit less happily there. The construction required for present purposes, however, is a construction within the context of the section as a whole; and for the reasons stated, I would, on first impression, opt for the inclusion of a subjective element.
I also bring to account the judgment of Perram J in Official Trustee in Bankruptcy v Gargan(No 2) [2009] FCA 398 to the approach of Davies J in Attorney General in and for the State of NSW v Gargan [2010] NSWSC 1192.
I do not consider that the various proceedings brought by the father constitute an abuse of process. Each of the proceedings, considered separately, are brought pursuant to an appropriate court power under the Act.
Before a vexatious proceedings order pursuant to s 102QB(2) of the Act can be made, the provisions of s 102QB(6) of the Act must be met, namely:-
(a)proceedings instituted (or attempt to be instituted) or conducted in any Australian court or tribunal; and
(b) orders made by any Australian court or tribunal; and
(c)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 father does not resile from the mother’s contention that the litigation has been ongoing since the parties separated in 2014. It could not be said that the final orders and subsequent proceedings, have in any way diminished the father’s enthusiasm for litigation.
It is a significant finding that the father was well aware that his persistence in communicating with the mother and instituting ongoing proceedings have either caused or were likely to cause the mother distress, upset and anxiety.
A more egregious finding is the recognition by the father that the ongoing proceedings may well be a cause of the children’s struggle with poor mental health. The father’s justification for his reliance upon continued litigation, is his concern for the mental health of the children and his desire to restore a relationship with them.
The father has been unsuccessful in obtaining leave to institute or re-enliven parenting proceedings. It does not appear that there is any new or significantly changed circumstances that would justify reopening the proceedings where the parties acknowledge the very fact of ongoing proceedings and the fragile emotional functioning of the children.
It is a regrettable observation that B was 11 years of age as at the date of the final orders and is now 17 years of age.
The father accepts, albeit with some level of reluctance, that at 17 years of age B should no longer be the focus of proceedings. The father is not prepared to concede that C, at 14 years of age, might well be adversely affected by the proceedings continuing.
I accept the mother’s evidence as to the adverse impact on her mental health by what appears to be the unrelenting nature of the proceedings. I accept that she has expended a significant sum by way of legal fees incurred, even taking into account that costs Orders made against the father are in or about the sum of $100,000.
It is a reasonable observation that the father has elected not to bring proceedings for contravention of orders but rather would seek to re-open the proceedings. The father acknowledges that he could, and possibly should have, issued proceedings for contravention of orders but has not done so in the mistaken belief that in some way the potential impact of his current application would have less impact upon the children.
The conundrum for the father is that the final orders are not the subject of challenge or amendment by the mother. If the father’s genuine complaint is that the mother’s conduct is such that she does not promote the children’s time with the father, hence their reluctance to see him, then an Application for Contravention is the appropriate remedy.
As is apparent from the primary orders sought by the father in the present application, the father does not seek any effective change to the final orders.
I consider that the legislation has a wider focus than a party who may be directly or indirectly affected. The relevance of public interest in the proper administration of justice is also a feature.
The potential for a court to have its resources taken up with litigation that is either without merit or may result in a pyrrhic victory if seen against the backdrop of the totality of the proceedings, is also to be taken into account.
Accordingly, I find that an order should be made pursuant to s 102QB(2)(b) of the Act in respect of proceedings under the Act in a court having jurisdiction under this Act in order to protect the mother and the children.
In making an order that will prohibit the father from instituting parenting proceedings, I do not propose to limit the father’s ability to bring a Contravention Application noting that to date, no such application has been filed although it may be contemplated.
I make orders as appear at the commencement of these reasons.
I certify that the preceding ninety-eight (98) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Berman. Associate:
Dated: 22 December 2022
5
0