BREECH and ROSALINE
[2017] FCWA 114
•9 OCTOBER 2017
JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA
ACT: FAMILY LAW ACT 1975
LOCATION: PERTH
CITATION: BREECH and ROSALINE [2017] FCWA 114
CORAM: O'BRIEN J
HEARD: 3 FEBRUARY 2017 & WRITTEN SUBMISSIONS
(FINAL WRITTEN SUBMISSIONS FILED 12 JULY 2017)
DELIVERED : 9 OCTOBER 2017
FILE NO/S: PTW 1475 of 2000
BETWEEN: MR BREECH
Applicant
AND
MS ROSALINE
Respondent
Catchwords:
CHILD SUPPORT - Application for a declaration pursuant to s 107 of the Child Support (Assessment) Act 1989 (Cth) - Summary dismissal.
PROPERTY - Application to set aside orders made by consent in May 2000 - Summary dismissal.
PRACTICE AND PROCEDURE - Abuse of process - Vexatious proceedings - Principles to be applied.
Legislation:
Artificial Conception Act 1985 (WA), s 3, s 6
Child Support (Assessment) Act 1989 (Cth), s 5, s 29(2), s 107
Family Law Act 1975 (Cth), s 60H, s 79A, s 102QB, s 118
Family Law Rules 2004 (Cth), r 10.12, r 10.14, r 13.01
Human Reproductive Technology Act 1991 (WA), s 4, s 22, s 34
Category: Not Reportable
Representation:
Counsel:
Applicant: Self-Represented Litigant
Respondent: Ms D Dimond
Solicitors:
Applicant: Self-Represented Litigant
Respondent: Dimond Family Lawyers
Case(s) referred to in judgment(s):
Attorney-General v Wentworth (1988) 14 NSWLR 481
Barker v Barker (2007) 36 Fam LR 650
Batistatos v Roads & Traffic Authority of New South Wales (2006) 226 CLR 256
Bigg v Suzi (1998) FLC 92-799
Blair v Curran (1939) 62 CLR 464
Chamberlain v Deputy Commissioner of Taxation (1988) 164 CLR 502
Consolaro v Consaloro [2002] WASC 92
Hill End Gold Ltd v First Tiffany Resource Corporation [2010] NSWSC 375
Hunter v Chief Constable of West Midlands Police [1981] 3 All ER 727
In the marriage of Holland (1982) FLC 91-243
In the marriage of Suiker (1993) FLC 92-436
Jackson v Goldsmith (1950) 81 CLR 446
Jago v District Court (NSW) (1989) 168 CLR 23
Lane and Lane (2016) FLC 93-699
Lindon v Commonwealth (No 2) (1996) 70 ALJR 541
Linprint Pty Ltd v Hexham Textiles Pty Ltd (1991) 23 NSWLR 508
Marsden & Winch (2013) FLC 93-560
Morrison & Morrison (1995) FLC 92-573
Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589
R v Rogers (1994) 181 CLR 251
Ridgeway v The Queen (1995) 184 CLR 19
Waterman & Waterman [2017] FamCAFC 23
WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT - PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED
Introduction
1The proceedings before the court are the amended Form 1 application of [Mr Breech] (“the husband”) filed on 17 October 2016 (by which he amended the relief originally sought in his Form 1 application filed on 7 July 2016) and the amended Form 1A response of [Ms Rosaline] (“the wife”) filed on 8 November 2016 (by which she amended the relief sought in her Form 1A response filed on 23 August 2016).
2In his amended application the husband sought:
1.A declaration pursuant to s 107 of the Child Support (Assessment) Act 1989 (Cth) (“the Assessment Act”) that he is not the father of the children [Child A], born [in] 1990, and [Child B], born [in] 1993;
2.Relief which, though not expressed by him as such, is clearly intended to seek an order pursuant to s 79A of the Family Law Act 1975 (Cth) (“the Act”) setting aside or varying the order for alteration of property interests made by consent on 10 May 2000 (“the property orders”), at least in part due to alleged non-disclosure by the wife of her superannuation interests; and
3.That the wife “be declared a Vexatious Litigant due to the perjury she has told the Family Court”.
3In her amended response the wife sought:
1.Summary dismissal of the husband’s application;
2.In the alternative, dismissal of the husband’s application as an abuse of process;
3.As a further alternative, payment by the husband of an amount of no less than $30,000.00 by way of “security of costs to the Family Court of Western Australia”;
4.That the husband “be declared a Vexatious Litigant”; and
5.Costs on an indemnity basis.
4The relief sought by the wife on the papers refers only to the husband’s application filed on 7 July 2016 in seeking summary dismissal, or in the alternative, dismissal as an abuse of process. At the hearing on 3 February 2017 counsel for the wife rectified that oversight and confirmed that the same relief was sought in relation to the husband’s amended application. The husband acknowledged that he was not prejudiced by that amendment; the relief sought was apparent from written submissions filed well prior to the hearing in any event.
5At the same hearing, the husband consented to the dismissal of that part of his amended application which sought that the wife be declared a vexatious litigant. He acknowledged that for some considerable time any proceedings in the court had been initiated by him, and that the wife had done no more than respond to them.
Evidence and submissions
6The husband filed an affidavit on 7 July 2016 in support of his application. He then filed a further affidavit on 17 October 2016 in support of his amended application.
7The wife filed an affidavit on 8 November 2016 in support of her amended response.
8At the same time, the wife filed written submissions. Orders had been made on 3 October 2016 entitling the husband to file and serve any affidavit in response and any written submissions on which he intended to rely on within 21 days after service of those documents on him.
9On 31 January 2017 the husband filed a further affidavit, together with written submissions under cover of a letter dated 11 January 2017.
10The matter proceeded to a hearing on 3 February 2017. The wife was represented by counsel and the husband represented himself. Submissions were made in relation to the balance of the relief sought by each party and I reserved my decision.
11I had, during the course of that hearing, clarified with the husband the basis of the relief sought by him.
12It is now common ground that the husband is not the biological father of the adult children.
13On the wife’s case, the children were born following a process of donor insemination. She says that the husband was fully involved in that process and consented to it.
14In relation to the declaration sought pursuant to the Assessment Act, the husband identified two grounds:
1.Firstly, he denies the assertion that he consented to any process of donor insemination and says that he was unaware of it; and
2.In the alternative, he speculates that the children may have been born as a result of the wife falling pregnant to another man in the course of an extramarital affair.
15In relation to his application to set aside the property orders the husband identified two grounds:
1.He contends that at the time the property orders were made the wife failed to disclose what he now alleges were superannuation interests held by her; and
2.He contends that his consent to the orders was, at least in part, based on his understanding at the relevant time that he was the father of the children. He says that understanding informed his consideration of the factors set out in s 75(2) of the Act, and what orders would be just and equitable in all the circumstances.
16On 1 March 2017, the husband filed a further affidavit and written submissions asserting that I had “requested” those submissions. I reviewed the transcript of the hearing and Mr Breech was mistaken in making that assertion. Nevertheless, I permitted the documents to be filed.
17On 21 March 2017 I made directions to enable the wife to file and serve further submissions in response if she chose to do so; she did not.
18The husband wrote to the court again on 17 March 2017 enclosing still further submissions. The Principal Registrar returned those documents to him, advising that if he wished to seek leave to make further submissions, whether at a hearing or in writing, it was open to him to do so in the appropriate manner.
19The husband responded by writing a letter, received by the court on 21 April 2017, requesting leave to make further submissions as he had “only recently discovered the Human Reproductive Technology Act 1991 (WA) (“HRT Act”) which [he would] submit to the court”. So as to ensure that the husband did not perceive any lack of procedural fairness, leave was granted for either party to file a further short affidavit and additional submissions on or before 21 July 2017. The husband made further written submissions which were received by the court on 12 July 2017. The solicitor for the wife confirmed that no further submissions were to be made on her behalf, nor would any further affidavit be filed.
Relevant previous applications
20The parties were married [in] 1985 and separated in January 2000. Parenting and property proceedings commenced shortly thereafter, and the parties were divorced in April 2001. There is a long history of subsequent litigation between the parties, outlined in more detail below. The children who have been the subject of much of the litigation are now aged in their twenties.
21For present purposes it is unnecessary to recite the entire history of the proceedings between the parties. There are, however, previous proceedings which are relevant to the husband’s application for a declaration under the Assessment Act.
22On 4 December 2008 the husband filed a Form 2 application seeking orders, “that [Child A] and [Child B] not be recognised as [his] children. Hence revoke any contact orders in regards to them are revoked (sic)”.
23In his Client Information Form filed with that application the husband stated that he was not the biological parent of the children and that he sought “recognition for not being legally liable for the said children”.
24The husband swore an affidavit in support of that application. He said that when Child B was seven years old he confronted the wife, having noted that the children did not physically resemble him. He said that the wife had told him that she had, without his “permission”, seen [Dr J] and arranged artificial insemination.
25He went on to allege that he had discussed the matter with a representative of the Reproductive Council of Western Australia (“RCWA”) and that Dr J had not followed appropriate protocols. Relevantly for present purposes, he went on to say:
In regards to Legislation and me being legally responsible for my children the RCWA said that [Dr J] should be able to produce a record showing that I gave written permission for this Artificial Insemination to occur. I can tell you no such record exists since I never signed anything. Also I have written to [Dr J], in June this year, at [Suburb A Medical Centre] in asking him for this written evidence and he has not even responded.
26Later in the same affidavit he said (errors are as they appear in the original):
Basically for me to legally be my children father legal protocals had to be followed and my legal signature was required. This never occurred. Subpoena [Dr J] and all his records in regards to this matter and you will discover he is an utter liar.
27The husband’s application was filed in circumstances where steps were being taken through the Child Support Agency to endeavour to collect significant arrears of child support payments from him.
28The wife responded to that application. She filed a response on 4 February 2009, seeking the dismissal of the application or in the alternative an order for security for costs. She swore an affidavit on 4 February 2009 responding to the matters raised in the husband’s affidavit.
29The wife said that the husband was intimately involved in all decisions and consented to the procedures undertaken to facilitate the conception of the children. Her affidavit set out in some detail a history of joint consultations between the parties and Dr J. She also gave evidence in relation to what she described as an “intense preparatory process” prior to receiving the donor sperm, saying that the process continued over several months and was observed on numerous occasions by the husband. She annexed to her affidavit letters she had written to the husband in 2004, after the parties separated, raising with him the issue of how and when to tell the children how they were conceived.
30The husband represented himself at a hearing before the Honourable Justice Martin on 9 February 2009, when his application and the wife’s response came on for hearing.
31In November 2009 the husband requested a transcript of that hearing, which I have reviewed.
32Reference was made in the hearing to a Form 1 application for final orders filed by the husband on 11 March 2008 and the response filed by the wife seeking summary dismissal of that application. In that application, the husband had sought various orders in relation to Child B spending time with him and communicating with him.
33Counsel then appearing for the wife summarised the position in these terms:
…it would appear that if indeed [Mr Breech’s] desire is to prosecute the application that he filed on 4 December 2008 then – and in that case the question of the form 1 falls away because he’s not seeking any orders with respect to the children, other than, it would seem, an order, I presume, pursuant to section 107 of the Child Support Assessment Act.
34Her Honour enquired with the husband as to whether the proceedings “now [came] down to an issue about child support”. The husband replied in the negative, confirming that he wished to pursue his application in relation to time to be spent with Child B. There was then the following exchange:
[HER HONOUR]: But I’m sorry to be a little confused, but then why have you filed an application that any contact orders be revoked?
[THE HUSBAND]: I guess I was having a bad day, your Honour. Okay?
[HER HONOUR]: All right. Well, what exactly – so you’re not asking for that order at all now?
[THE HUSBAND]: No.
[HER HONOUR]: You’re still asking for the contact orders – the time to be spent with your daughter to continue.
[THE HUSBAND]: Mm. I did try to get…
[HER HONOUR]: Did you give any notice to anyone that you weren’t actually seeking to abandon contact?
[THE HUSBAND]: I didn’t think they had the notice in the first place. As he’s pointed out, they were contacted by the [Child Support Agency], which I don’t think is totally appropriate or a breach of confidentiality, I thought this matter – I was just going to bring it up with you and dismiss it here in front of you.
[HER HONOUR]: Dismiss what?
[THE HUSBAND]: The one on 4 December.
[HER HONOUR]: Okay. All right. I’m not quite sure where we are at [counsel]. I mean, what’s your client’s position?
[COUNSEL FOR THE WIFE]: Certainly, I’m happy to have an order that the application filed on 4 December 2008 [be] dismissed. That can be made by consent.
[HER HONOUR]: Yes, all right. That’s what you’re asking me to do, isn’t it?
[THE HUSBAND]: At this present stage, your Honour.
35The husband’s application for a declaration that the children “not be recognised as [his] children” was then dismissed by consent.
36The remaining proceedings, being the husband’s application in relation to his time with Child B, came on before the Honourable Justice Crisford on 26 February 2009. The wife’s application for summary dismissal of the Form 1 application was adjourned for hearing on 19 May 2009.
37The husband then filed an amended Form 1 application on 17 March 2009, again seeking parenting orders in relation to Child B. On 18 May 2009, the day before the scheduled hearing, he filed an application for recusal of Crisford J.
38On 19 May 2009, Crisford J dismissed the application that she recuse herself, and otherwise adjourned the proceedings to a direct track hearing on 13 July 2009. The husband was ill on the day of the scheduled hearing, which was adjourned to 31 August 2009. That hearing proceeded, there was a debate about whether or not certain documents had been served, and Her Honour reserved her decision. On 21 September 2009, Her Honour summarily dismissed the husband’s Form 1 application filed on 11 March 2008 (as amended on 17 March 2009), discharged all previous orders and made orders for Child B to spend time and communicate with the husband in accordance with her wishes. Child B was, by that time, nearly 16.
39On 18 September 2009 the husband had filed a further application seeking parentage testing and sought to proceed ex parte. That application was listed to 26 October 2009.
40The Child Support Registrar filed an application on 30 September 2009 seeking payment from the husband of the sum of $30,863.00 in arrears of child support and penalties. That application was listed to 19 November 2009. On 26 October 2009 the husband’s application filed 18 September 2009 was adjourned to the same date.
41On 19 November 2009 a Magistrate ordered that the parties undergo parentage testing in relation to the children, if possible within 28 days. The proceedings were otherwise adjourned to 17 December 2009.
42At that hearing, which was before a different Magistrate, the wife was granted leave to issue any relevant subpoena for production of her medical records relating to the conception of the children and the orders for parentage testing were stayed on an interim basis. A timeframe was set for the husband to file an affidavit in answer to the evidence filed on behalf of the Child Support Registrar, if he chose to do so.
43Pursuant to the leave granted, subpoenas were issued to Dr J and [Hospital A] for the production of relevant medical records. Those subpoenas were returnable at a hearing on 5 January 2010. Documents were produced and leave was given for their inspection.
44The husband swore an affidavit on 7 February 2010 in response to the affidavit filed on behalf of the Child Support Registrar. That affidavit was prepared with the assistance of his then solicitor. In it, the husband stated that the children were “conceived by donor sperm without his permission”, made reference to what he incorrectly referred to as the “1990 Donor Insemination Act” and the asserted requirement for counselling, and stated that counselling had not taken place.
45Later in the same affidavit, he asserted that he remained “unsure as to whether or not I’m the biological father of these children”. He sought the DNA tests be completed and that the court stay any enforcement proceedings in relation to child support “until this matter has been fully heard and a determination made in relation to the consent of the conception of the children and at that time I will be bound by any decision this Honourable Court makes”.
46It will be seen that even within the one affidavit, prepared by the husband’s then lawyer, there was an internal inconsistency in the husband’s position.
47Procedural orders were then made on 11 February 2010, and the application of the Child Support Registrar was adjourned to 19 March 2010 for hearing.
48There was then a scheduled procedural conference on 24 February 2010. Counsel appearing for the husband indicated that he was instructed to consent to the discharge of the orders for parentage testing which had been made on 19 November 2009. The testing had not taken place. Counsel for the wife indicated that she was instructed to agree to the husband’s Form 2 application filed on 18 September 2009, in which he sought orders for parentage testing, proceeding to hearing notwithstanding the dismissal of his application filed on 4 December 2008 which itself purported to deal with the issue of parentage. The conference file note prepared by the Registrar records an agreed position that does not bear the scrutiny of hindsight:
Counsel consider it would be more cost effective to proceed in this manner rather than for an appeal to be filed or for there to be an argument about whether [Mr Breech] can proceed with the application of 18 September 2009 given his application of 4 December 2008 was dismissed.
49Orders were made by consent to reflect that agreement and the matter was listed for a procedural conference on 21 June 2010 and for hearing on 6 July 2010. Counsel for the wife foreshadowed the filing of an affidavit by Dr J, who at that stage was apparently imprisoned.
50That affidavit was sworn by Dr J on 4 June 2010. He had reviewed copies of medical records from his files which had been subpoenaed. The records confirmed that seminal fluid examinations had been conducted on the husband on three separate occasions in late 1988 and early 1989. While Dr J had no precise recollection of attendance by the husband at his surgery at that time, he deposed that as the test results were directed to him they could only have been done at his request following consultation and accordingly must have been as a result of attendances by the husband at his surgery.
51He identified a letter written by him and dated 14 February 1989, referring the husband to [Dr K] for fertility analysis. He further identified a letter from Dr K to him dated 17 March 1989 detailing the results of investigations on the husband at his request, leading to a conclusion of infertility.
52The affidavit goes on to outline Dr J’s recollection of the circumstances leading up to the conception of Child A, who was born [in] 1990. Dr J acknowledged not having clear recollection of the actual attendances of the parties at his surgery, but went on to say:
I do have clear recollection, and I am positive, that at no time during my time of operation as a medical practitioner, did I ever conduct donor sperm procedures or any other form of IVF procedure on any Wife while concealing such procedures from her Husband.
53He went on to outline in some detail the procedures he followed in such cases, which required active involvement on the part of the relevant husband. He detailed also the preparatory processes involved for the wife. He said that he had no recollection of the husband being involved in any of the actual inseminations, which generally took place at his surgery, but did recall that “[Mr Breech] refused to be involved because he was very threatened by masculinity issues”. He further stated that physical details of the husband were required by the [Medical Institute A] to enable them to try to provide sperm from a donor with similar characteristics.
54The affidavit went on to detail Dr J’s recollection of the processes which led to the conception of Child B who was born [in] 1993. Importantly, that evidence included the following statement:
Included in the copy of the Personal History Sheet of [the wife]… is an entry on 23 December 1992 which I confirm is in my handwriting. These notes detail a telephone call I had with [the husband] on that date, for which there was no charge, discussing the AID process (emphasis added).
55The proceedings were then delayed as the husband had obtained employment [offshore]. The trial date was vacated and a further date allocated for 18 August 2010.
56The husband swore a further affidavit, prepared with the assistance of his then solicitor, on 11 August 2010. He confirmed his earlier evidence that he had never agreed to the wife having artificial insemination with someone else’s sperm. He maintained that he had understood that the wife was taking fertility drugs and that the children had been conceived naturally.
57The matter proceeded to a hearing on 18 August 2010. The husband’s application filed on 18 September 2009, in which he sought orders for parentage testing was summarily dismissed.
58On 26 August 2010, orders were then made by a different Magistrate dealing with the application of the Child Support Registrar, for the husband to pay to the Child Support Registrar the sum of $46,678.63 within six months.
59There were then further disputes about costs and the enforcement of earlier costs orders.
60The husband did not comply with the orders made on 26 August 2010, and further steps were taken by the Child Support Registrar in December 2011 towards the enforcement of those orders.
61There were no further proceedings commenced in this court until the husband filed his application on 7 July 2016 seeking orders in the following terms (errors as in original):
1.That there is a finding by the court that [the husband] is not the parent of [the two children];
2.That there is a declaration pursuant to section 107(4)(c) of the [Assessment Act] that [the wife] was not entitled to an Administrative Assessment of the child support for the the said children by [the husband];
3.That in the event that the Court does not make the declaration sought in the paragraph 2 on the first return date the applicant, the respondent and the child undergo parentage testing pursuant to the provisions of the Family Law Act 1975 and Regulations;
4.That until further orders of the Court the of the said parentage testing be met equally by the parties and on a finding that the applicant is not the father of the children, that the respondent reimburse the applicant his share of the costs;
5.That if practicable the parentage testing procedure be undertaking within 28 days of the date of this order;
6.That the applicant have liberty to relist the application on short notice after the results of the said parentage testing procedure have been ordered or if there is some delay in the matter beyond the applicants control.
62The husband subsequently filed his amended Form 1 application, in the terms set out earlier in these reasons.
63It will be seen from what is set out above that the issues of the parentage of the children, and the husband’s consent or lack of it to the artificial insemination procedures, have been previously agitated with the following outcomes:
1.The husband’s first application in which he alleged that the children had been born of an artificial insemination process to which he had not consented was dismissed by consent, after the husband told the Judge that when he filed the application he was “having a bad day”; and
2.The husband’s next application in which he raised the same allegations was summarily dismissed in the light of the evidence of the wife and Dr J.
64The husband did not appeal against the dismissal of either application.
65It is against that background that the wife’s contentions that the present application for a declaration pursuant to the Assessment Act should be summarily dismissed, or dismissed as an abuse of process, fall to be considered. While the wife expresses the relief sought by her in the alternative, summary dismissal may result upon a finding that an application is frivolous, vexatious, or an abuse of process or that the application has no reasonable likelihood of success.
The law – summary dismissal
66Rule 10.12 of the Rules is in the following terms:
10.12 Application for summary orders
A party may apply for summary orders after a response has been filed if the party claims, in relation to the application or response, that:
(a)the court has no jurisdiction;
(b)the other party has no legal capacity to apply for the orders sought;
(c)it is frivolous, vexatious or an abuse of process; or
(d)there is no reasonable likelihood of success.
67Rule 10.14 provides (while expressly not limiting the powers of the court) that on an application under rule 10.12 the court may dismiss any part of the case, decide an issue, or make a final order on any issue.
68The principles to be applied when considering an application for summary dismissal, as outlined in Lindon v Commonwealth (No 2) (1996) 70 ALJR 541 and referred to in Bigg v Suzi (1998) FLC 92-799 may be summarised as follows:
1.It is a serious matter to deprive a person of access to the court for the determination at trial of their claim. Accordingly, the power to summarily dismiss an application is “rarely and sparingly provided”;
2.The party seeking summary dismissal must show that it is clear on the face of the other party’s documents that he or she “lacks a reasonable cause of action or is advancing a claim that is clearly frivolous or vexatious”;
3.A perception by the court, at that preliminary stage, that the substantive application is unlikely to succeed, or that the case is weak, is not sufficient to justify summary dismissal;
4.If there is a serious legal question to be determined it should ordinarily be determined at trial, as the proof of facts may assist the court to understand and apply the law that is invoked;
5.If the substantive claim is inadequately pleaded, but it appears that the claimant may have a reasonable cause of action which is not yet in proper form, the court will ordinarily allow that party to reframe the pleading; and
6.The guiding principle is… doing what is just. If it is clear that proceedings within the concept of the pleading under scrutiny are doomed to fail, the court should dismiss the action to protect the defendant from being further troubled, to save the plaintiff from further costs and disappointment and to relieve the court of the burden of further wasted time which could be devoted to the determination of claims which have legal merit: Lindon (supra) at 545.
The law – abuse of process
69It is beyond doubt that courts have the power to ensure that their processes are not abused. That power was described by Lord Diplock in Hunter v Chief Constable of West Midlands Police [1981] 3 All ER 727 at p 729 as:
…the inherent power which any court of justice must possess to prevent misuse of its procedure in a way which, although not inconsistent with the literal application of its procedural rules, would nevertheless be manifestly unfair to a party to litigation before it, or would otherwise bring the administration of justice into disrepute among right-thinking people.
70In R v Rogers (1994) 181 CLR 251 at [255] Mason CJ observed that:
The concept of abuse of process is not confined to cases in which the purpose of the moving party is to achieve some foreign or ulterior object … The circumstances in which abuse of process may arise are extremely varied and it would be unwise to limit those circumstances to a fixed category.
71Unreasonable delay may in itself amount to an abuse of process.
72In Jago v District Court (NSW) (1989) 168 CLR 23 at [58] Deane J said:
The power of a court to stay proceedings in a case of unreasonable delay is not confined to the case where the effect of the delay is that any subsequent trial must necessarily be an unfair one. Circumstances can arise in which such delay produces a situation in which any continuation of the proceedings would, of itself, be so unfairly and unjustifiably oppressive that it would constitute an abuse of the court’s process. Multiple prosecutions arising out of one set of events but separated by many years or a renewed charge brought years after the dismissal of earlier proceedings for want of prosecution could, in a case where the relevant material had been available to the prosecution from the outset and depending on the particular facts, provide examples. Where such circumstances exist, the power of a court to prevent abuse of its process extends to the making of an order that proceedings be permanently stayed.
73Gaudron J made the following observation at [74]:
The terms “frivolous”, “vexatious” and “oppressive”, when used in relation to civil proceedings, sometimes serve to signify that the proceedings are an abuse of process such that, in the interests of the administration of justice, they should attract the grant of a permanent stay. But the terms “vexatious” and “oppressive” may also import a consideration of the justice or fairness of the proceeding, those terms signifying, in appropriate context, proceedings which are “seriously and unfairly burdensome, prejudicial or damaging” or are “productive of serious and unjustified trouble and harassment” (citations omitted).
74Reference in those authorities to the granting of a permanent stay of proceedings, as distinguished from summary dismissal, does not alter the applicable principles bearing in mind the authorities earlier cited in relation to the power to summarily dismiss, and the express provisions of the rules.
The law – the declaration sought by the husband
75The husband seeks a declaration pursuant to s 107 of the Assessment Act, which provides:
107 Declaration that a person should not be assessed in respect of the costs of the child
(1)If the Registrar accepts an application for administrative assessment of child support for a child, an application may be made, subject to subsection (1A), to a court having jurisdiction under this Act for a declaration that a person should not be assessed in respect of the costs of the child because the person is not a parent of the child.
(1A)However, an application must not be made in respect of a child and a person if a court has already declared under section 106A that the person should be assessed in respect of the costs of the child because the person is a parent of the child.
(2)The application must be made within the time prescribed by the applicable Rules of Court or within such further time as is allowed under the applicable Rules of Court.
(3)Subject to section 145 (Registrar may intervene in proceedings), the parties to the proceeding are the person who was assessed in respect of the costs of the child and the applicant for administrative assessment of child support.
(4)The court may grant the declaration if the court is satisfied that the person should not be assessed in respect of the costs of the child because the person is not a parent of the child.
(5)If the court grants the declaration, the application for administrative assessment of child support is to be taken never to have been accepted by the Registrar.
(6)If the court grants the declaration, the court must, as soon as practicable, consider making an order under section 143. The Assessment Act only applies in relation to eligible children. A child born on or after the commencing day of the Assessment Act is an eligible child; both children in this case were born after the commencement day.
76The criteria to be satisfied for the Child Support Registrar to find that a relevant person is a parent of an eligible child are set out in s 29(2) of the Assessment Act, which is in the following terms:
(2)The Registrar is to be satisfied that a person is a parent of a child only if the Registrar is satisfied:
(a)that the person is or was a party to a marriage and the child was born to the person, or the other party to the marriage, during the marriage; or
(b)that the person’s name is entered in a register of births or parentage information, kept under the law of the Commonwealth or of a State, Territory or prescribed overseas jurisdiction, as a parent of the child; or
(c)that, whether before or after the commencement of this Act, a federal court, a court of a State or Territory or a court of a prescribed overseas jurisdiction has:
(i)found expressly that the person is a parent of the child; or
(ii)made a finding that it could not have made unless the person was a parent of the child;
and the finding has not been altered, set aside or reversed; or
(d)that, whether before or after the commencement of this Act, the person has, under the law of the Commonwealth or of a State, Territory or prescribed overseas jurisdiction, executed an instrument acknowledging that the person is a parent of the child, and the instrument has not been annulled or otherwise set aside; or
(e)that the child has been adopted by the person; or
(f)that the person is a man and the child was born to a woman within 44 weeks after a purported marriage to which the man and the woman were parties was annulled; or
(g)that the person is a man who was a party to a marriage to a woman and:
(i)the parties to the marriage separated; and
(ii)after the parties to the marriage separated, they resumed cohabitation on one occasion; and
(iii)within 3 months after the resumption of cohabitation, they again separated and afterwards lived separately and apart; and
(iv)the child was born to the woman within 44 weeks after the period of cohabitation but after the dissolution of the marriage; or
(h)that the person is a man and:
(i)the child was born to a woman who cohabited with the man at any time during the period beginning 44 weeks and ending 20 weeks before the birth; and
(ii)no marriage between the man and the woman subsisted during any part of the period of cohabitation; or
(i)that the person is a parent of the child under section 60H or section 60HB of the Family Law Act 1975.
77Section 5(1)(b) of the Assessment Act contains the following definition of “parent”:
(b)when used in relation to a child born because of the carrying out of an artificial conception procedure—means a person who is a parent of the child under section 60H of the Family Law Act 1975;
78Section 60H of the Act is in the following terms:
(1)If:
(a)a child is born to a woman as a result of the carrying out of an artificial conception procedure while the woman was married to, or a de facto partner of, another person (the other intended parent); and
(b)either:
(i)the woman and the other intended parent consented to the carrying out of the procedure, and any other person who provided genetic material used in the procedure consented to the use of the material in an artificial conception procedure; or
(ii)under a prescribed law of the Commonwealth or of a State or Territory, the child is a child of the woman and of the other intended parent;
then, whether or not the child is biologically a child of the woman and of the other intended parent, for the purposes of this Act:
(c)the child is the child of the woman and of the other intended parent; and
(d)if a person other than the woman and the other intended parent provided genetic material—the child is not the child of that person.
(2)If:
(a)a child is born to a woman as a result of the carrying out of an artificial conception procedure; and
(b)under a prescribed law of the Commonwealth or of a State or Territory, the child is a child of the woman;
then, whether or not the child is biologically a child of the woman, the child is her child for the purposes of this Act.
(3)If:
(a)a child is born to a woman as a result of the carrying out of an artificial conception procedure; and
(b)under a prescribed law of the Commonwealth or of a State or Territory, the child is a child of a man;
then, whether or not the child is biologically a child of the man, the child is his child for the purposes of this Act.
(5)For the purposes of subsection (1), a person is to be presumed to have consented to an artificial conception procedure being carried out unless it is proved, on the balance of probabilities, that the person did not consent.
(6)In this section:
this Act includes:
(a)the standard Rules of Court; and
(b)the related Federal Circuit Court Rules.
79In the context of the assertions raised by the husband in these proceedings, sub-s 60H(5) assumes some importance. Pursuant to that section, the husband is presumed to have consented to an artificial conception procedure being carried out unless it is proved on the balance of probabilities that he did not consent. That presumption is inconsistent with the regular submissions by the husband during the course of the present proceedings to the effect that the wife bears the onus of proving the relevant consent.
80Section 60H(5) of the Act is also consistent with the provisions of the Artificial Conception Act 1985 (WA) as in force at the time of conception and birth of both of the children.
81Section 3 of that Act defines a “fertilisation procedure” as artificial insemination or the procedure of fertilising an ovum outside the body and transferring the fertilised ovum into the uterus.
82Section 6 of that Act is in the following terms:
(1)Where a married woman undergoes, with the consent of her husband, a fertilization procedure in consequence of which she becomes pregnant, then for the purposes of the law of the State, the husband -
(a)shall be conclusively presumed to have caused the pregnancy; and
(b)is the father of any child born as a result of the pregnancy.
(2)In every case in which it is necessary to determine for the purposes of this section whether a husband consented to his wife undergoing a fertilization procedure, that consent shall be presumed, but the presumption is rebuttable.
83Reference was made by the husband in his submissions to the HRT Act, and to the directions given by the Commissioner of Health pursuant to that Act.
84That reference was made in the context of submissions by the husband to the effect that certain requirements of the HRT Act and directions had not been met. He asserted that the failure to meet those requirements supported his case either that artificial insemination had taken place without his consent, or that it had not taken place at all.
85The husband’s submissions, however, referred to the HRT Act and directions in their present form. Both have been amended since the birth of the children. The husband’s arguments can only logically be considered by reference to the HRT Act and directions as they applied at the time of conception and birth of the relevant child.
86The HRT Act received royal assent on 8 November 1991. Part 1 Div 1 of the HRT Act became operational on 6 March 1992. The first directions were issued on 22 March 1993. Part 1 Div 2, Pt 2 and Pt 3-5 of the HRT Act became operational on 8 April 1993.
87Child A was born [in] 1990. Accordingly, the submissions of the husband by reference to the HRT Act and directions are irrelevant to any consideration of his application for a declaration pursuant to the Assessment Act in relation to Child A.
88Child B was born [in] 1992. References below to both the HRT Act and the directions are as at the time of Child B’s birth. For reasons which will become apparent, it is unnecessary to consider whether an issue arises by virtue of certain parts of the HRT Act not becoming operational until after Child B was conceived.
89Relevantly, the objects of the HRT Act are set out in s 4. They may be summarised as follows:
(a)to regulate and provide guidance in the use of reproductive technology by the establishment of the Western Australian Reproductive Technology Council, and the implementation of a code of practice and licensing requirements;
(b)to ensure adherence to proper professional standards in the practice of reproductive technology;
(c)to monitor developments in reproductive technology and respond appropriately;
(d)to establish standards as to the persons to whom reproductive technology should be made available, the welfare of those participants and the prospective welfare of any child to be born as a result of the procedure;
(e)to ensure that community standards taken into account in the practice of reproductive technology; and
(f)to provide a forum for ongoing community debate in relation to policy issues.
90Consistently with those objects, the HRT Act contains provisions regulating the relevant practice. Directions given by the Commissioner of Health to set the standards of practice under the HRT Act were gazetted on 22 March 1993 (after Child B’s birth) and included provisions as to who must give consent to an artificial fertilisation, the information to be provided prior to consent, and counselling.
91The provisions require that prior to an artificial insemination procedure, the husband or partner of the relevant woman must give consent, and set out in some detail the information to be provided to the participants prior to the giving of that consent.
92The provisions also require IVF practice licensees to provide access to counselling to all couples undergoing IVF/GIFT, and the provision to the recipients of donated human reproductive material of comprehensive information about the medical, social and secrecy implications of rearing a child born after donation.
93The provisions do not, however, make counselling mandatory.
94Section 34 of the HRT Act provides that contravention of a condition or direction applicable to a license or exemption under the Act may constitute grounds for disciplinary action.
95Section 22(9) of the HRT Act was, at the relevant time, in the following terms:
(9)Where a consent required by or under this Act is not given, or is not effective, or is not complied with that matter may be a cause for disciplinary action or proceedings for an offence but does not necessarily affect the rights of any person (emphasis added).
96Notwithstanding the importance attached to it by the husband, his allegation that no counselling took place does not, even if accepted, demonstrate that he did not consent to the artificial insemination procedure, nor vitiate that consent if he did.
The evidence – the declaration sought by the husband
97I have carefully reviewed the affidavits filed and relied upon by the husband. For the purpose of these reasons it is unnecessary and undesirable to set out all of the allegations and assertions made in them; rather, it is appropriate to summarise the key elements of his evidence. In adopting that approach, I make it clear that I have read and considered the affidavits in their entirety.
98In his affidavit filed on 7 July 2016 the husband asserted:
1.That while he attended in 1989 at Medical Institute A for tests of his fertility, he clearly told the wife and Dr J that he “was not having someone else’s kids by Donor Sperm”;
2.That the wife’s evidence in earlier proceedings, which he claimed not to have seen before, to the effect that he had been eager to have a third child was false;
3.That counselling was a compulsory component of any process of donor insemination, and that no such counselling took place;
4.That allegations made by the wife in earlier proceedings and to her doctor as to family violence were false; and
5.That other allegations made by the wife as to his conduct were false.
99In addition, he made various assertions as to his view of the credibility of both the wife and her lawyer, and the conduct of earlier proceedings including a parenting trial before the Honourable Justice Penny.
100In his affidavit filed on 17 October 2016, the husband again asserted that counselling was, at the relevant time, an essential prerequisite to any process of donor insemination, and that no such counselling had occurred. He repeated his allegation that the wife’s medical records did not contain any documentation supporting the proposition that the children were born as a result of donor insemination, saying that “the only DI is 1996 which was clearly done behind my back without my permission”. He made various complaints about the lawyer who had represented him earlier in the proceedings, and made the assertions as to non-disclosure of the wife’s superannuation entitlements which are dealt with elsewhere in these reasons. Otherwise, the affidavit repeated allegations previously made.
101In his affidavit filed on 31 January 2017 the husband provided more detail of his allegations in relation to the donor insemination issue and alleged that Dr J had kept the wife’s personal medical file at his own home in 2009 and 2010; that allegation was made in the context of allegations that previous representations made by the wife as to the availability of her medical records were false.
102Finally, in his affidavit sworn on 27 February 2017 and filed on 1 March 2017, the husband repeated the allegations previously made, concluding that the wife “has ample time to produce real evidence to support her side of the story, but she has not since it basically does not exist”.
103The wife relied on an affidavit affirmed by her on 8 November 2016 and filed the same day. In that affidavit, she set out certain aspects of the history of litigation between the parties and also addressed assertions made by the husband as to the availability or otherwise of records previously held by [Suburb K Medical Centre]. She otherwise placed into evidence various documents from earlier court proceedings and items of correspondence. By her written submissions filed the same day she drew attention to matters relevant to the earlier litigation and which are apparent on the court record.
Consideration of the husband’s application for a declaration under the Assessment Act
104In considering both the wife’s application for summary dismissal and her application framed in the alternative that the husband’s application be dismissed as an abuse of process, at least in so far as those applications relate to the relief sought by the husband under the Assessment Act, the earlier proceedings regarding the circumstances of the children’s conception are relevant.
105The determination of those earlier proceedings calls into question potential issues of res judicata and issue estoppel.
106Res judicata is the principle where no other proceeding may be maintained on the same cause of action, where that action has been brought and judgment entered: Jackson v Goldsmith (1950) 81 CLR 446.
107The distinction between res judicata and issue estoppel was referred to in Blair v Curran (1939) 62 CLR 464 at 532:
The distinction between res judicata and issue estoppel is that in the first the very right or cause of action claimed or put in suit has in the former proceedings passed into judgment, so that it is merged and has no longer an independent existence, while in the second, the purpose of some other claim or cause of action, a state of fact or law is alleged or denied the existence of which is a matter necessarily decided by the prior judgment, decree or order.
108An application for a declaration pursuant to s 107 of the Assessment Act, while anticipated in the earlier proceedings between these parties, was never in fact brought prior to the present proceedings. It cannot, therefore, be said simply by reference to an application for identical relief that the “very right or cause of action claimed… has in the former proceedings passed into judgment”.
109That does not, however, mean that the potential application of res judicata or issue estoppel is not properly raised.
110In Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 Brennan J said at [13] to [20] (citations omitted):
The recovery of a judgment which declares or enforces rights or liabilities between parties inconsistent with an earlier judgment binding upon them is precluded by the operation of the rules of estoppel and res judicata. These rules may operate concurrently in particular cases according to the causes of action litigated and the issues arising in each proceeding. In the present case, the issues of fact which are common to the first and the second action were found in the first action and the parties are estopped by those findings in the second action… (emphasis added)
…
There is an imprecision in the meaning of the term cause of action, which is sometimes used to mean the facts which support a right to judgment, sometimes to mean a right which has been infringed and sometimes to mean the substance of an action as distinct from its form. Imprecision in the meaning of cause of action tends to uncertainty in defining the ambit of the rule that a judgment bars subsequent proceedings between the same parties on the same cause of action. The foundation of the rule, whether it be termed res judicata, or cause of action estoppel or judgment recovered, is the merging of the cause of action in the judgment.
If cause of action is taken to mean a right, the rule is stated in terms of the passing of the right into judgment, and the rule precludes a party bound by the judgment from maintaining against another party bound by it any subsequent proceeding to recover a judgment giving a remedy to enforce or to compensate for an infringement of that right. The rule does not preclude litigation seeking a remedy to which a party is entitled in virtue of a different right from that which was first put in suit provided that the facts which support the right sued upon in the second action are not the same facts as those supporting the right which passed into the first judgment… (emphasis added)
If cause of action is taken to mean the facts which support a right to judgment, the rule of res judicata bars an action for relief founded upon the same facts as those upon which an earlier judgment was recovered, though the right sued upon in the second action is different from the right which passed into or was negated by the earlier judgment.
When the same facts support rights to different remedies against the same defendant, the plaintiff cannot recover a judgment giving a remedy in respect of more than one right. He may pursue his remedies concurrently in the same action, but he is put to his election before judgment as to which remedy he shall have. And when judgment is entered, all of the rights which he might have claimed in that litigation are merged in the judgment.
The party entitled to relief cannot improve his position by bringing separate actions. Though he may elect between inconsistent remedies pursued in the one action, or between the actions to be pursued in order to recover a judgment giving the remedy he chooses, the merger in the judgment first recovered of a right to another remedy takes effect by operation of law. When those rights (or causes of action) are extinguished, no further litigation may be pursued to recover a second judgment upon them.
Accordingly, inconsistency between judgments against the same defendant is avoided by the merger in the judgment first recovered of the right to the remedy thereby given and of all other rights which arise on the same facts (emphasis added). Thus, a plaintiff who recovers a judgment for damages in assumpsit is precluded from recovering a judgment for damages in tort arising out of the same facts; a principal who recovers a judgment for damages in fraud against his bribed agent is precluded from recovering a judgment in the amount of the bribe as moneys had and received to his use; and a party whose goods have been wrongfully seized and who recovers in replevin, is precluded from recovering a judgment for damages in trespass to goods…
111In the earlier proceedings between these parties, the alleged state of fact which is at the heart of the husband’s present application was itself squarely put. In the first of those earlier proceedings, the husband’s application based on that alleged state of fact was dismissed by consent. In the second of those earlier proceedings, the husband’s application based on that alleged state of fact was summarily dismissed.
112The further question that arises, therefore, is whether those dismissals in that form lead to a conclusion that the relevant alleged state of fact are a “matter necessarily decided by the prior judgement, decree or order” in circumstances when neither application proceeded to trial.
113Any judicial decision that finally grants relief or remedy to a party is a “judgment” for relevant purposes. The characterisation of the court’s determination as an “order” as opposed to a “judgment” is immaterial to the operation of res judicata: Hill End Gold Ltd v First Tiffany Resource Corporation [2010] NSWSC 375 at [33].
114A consent judgment intended by the parties to finally dispose of the relevant proceedings, will give rise to a res judicata: Chamberlain v Deputy Commissioner of Taxation (1988) 164 CLR 502 at 508.
115Res judicata may operate in bar even when no investigation of the merits of the previous proceedings has been made by the court or tribunal: Consolaro v Consaloro [2002] WASC 92 at [71].
116For example, a judgment in default of appearance will give rise to a res judicata, as the judgment is made on the basis of the available evidence, the defendant having forgone the opportunity of putting forward a defence: Linprint Pty Ltd v Hexham Textiles Pty Ltd (1991) 23 NSWLR 508 at 518.
117The first application of the husband in which the relevant alleged state of facts was raised was dismissed by consent.
118The merits of the application were not judicially considered. That may call into question a distinction between res judicata and issue estoppel in respect of a dismissal by consent, and a distinction between dismissal by consent and withdrawal; but in the present case any such distinctions do not matter.
119That is so as the second application of the husband in which the relevant alleged state of facts was raised was summarily dismissed after judicial consideration of the available evidence. The husband was represented by counsel at that hearing.
120It follows that in my view the husband is estopped from pursuing relief grounded on the same alleged facts, and his present application in so far as it seeks a declaration under s 107 of the Assessment Act must be summarily dismissed.
121Even if I am wrong in that view, I conclude in any event that the present application for relief under the Assessment Act amounts to an abuse of process. It is manifestly unfair to the wife for the husband to be permitted to yet again pursue litigation based on allegations which he has previously abandoned, and in circumstances where in still further litigation based on the same allegations, his application was summarily dismissed in the face of both his failure to properly prosecute it, and evidence leading to a conclusion that his application was doomed to fail.
122I note further the time that has passed since the husband first raised the allegations upon which the present application is purportedly based. Those allegations were first raised in a formal sense in December 2008. Even had the earlier applications referred to above never been made, let alone dismissed, the husband’s delay in instigating the present proceedings would in my view support a conclusion that to allow them to continue would be an abuse of process. That conclusion is reinforced by the observation that any evidence to be led to support or contradict the allegations made would necessarily relate to events occurring some 24 years ago in the case of Child B and over 27 years ago in the case of Child A.
123To adopt the words of the High Court in Jago (supra), the delay has in my view “produce[d] a situation in which any continuation of the proceedings would, of itself, be so unfairly and unjustifiably oppressive that it would constitute an abuse of the court’s process”.
124I propose to dismiss the application of the husband in so far as it seeks a declaration under the Assessment Act.
The law – applications under s 79A of the Act
125Section 79A of the Act relevantly provides as follows:
(1)Where, on application by a person affected by an order made by a court under section 79 in property settlement proceedings, the court is satisfied that:
(a)there has been a miscarriage of justice by reason of fraud, duress, suppression of evidence (including failure to disclose relevant information), the giving of false evidence or any other circumstance;
the court may, in its discretion, vary the order or set the order aside and, if it considers appropriate, make another order under section 79 in substitution for the order so set aside.
126As already noted, the husband’s application to set aside the property orders is grounded on his assertion that the wife gave false evidence, suppressed evidence or failed to disclose relevant information both in relation to her superannuation entitlements at the time the orders were made and in relation to the circumstances of the children’s conception.
127The relevant law was recently summarised by the Full Court in Waterman & Waterman [2017] FamCAFC 23 (“Waterman”), which was itself a decision arising from alleged non-disclosure in negotiations leading to consent orders for the alteration of property interests.
In short:
1.Parties have a duty to make “full and frank disclosure of all information relevant to the case in a timely manner”: r 13.01 Family Law Rules 2004 (Cth) (“the Rules”). That duty is owed both to the other party and to the court;
2.In order for there to be a “just, equitable and appropriate order” for alteration of property interests there must be full and frank disclosure by both parties of all circumstances which may be relevant to the determination of their true financial position both presently and in the foreseeable future: Morrison & Morrison (1995) FLC 92-573 at 81,670 (“Morrison”);
3.The duty of disclosure is a basic duty. Ordinarily a failure to comply with that duty will amount to a miscarriage of justice: Morrison (supra). The duty of disclosure does not fall away, nor become less relevant, simply because orders are made by consent: Waterman (supra) at [41].
4.The consent of a party to an order must be informed consent, as the consent itself is part of the judicial process upon which the court relies. If that consent is based on misleading or inadequate information, that may lead to a conclusion that there has been a miscarriage of justice either by reason of suppression of evidence or by reason of “any other circumstance”: In the marriage of Suiker (1993) FLC 92-436 at 80,471;
5.The term “miscarriage of justice” refers to a miscarriage of the judicial process, as distinguished from a real or perceived failure by one party to receive what they might consider to be their proper entitlement by way of alteration of property interests. A miscarriage of justice and an unjust and inequitable order are not synonymous concepts: Lane and Lane (2016) FLC 93-699 at [79];
6.Similarly, agreement to a consent order, which may not adequately reflect a party’s entitlements, does not of itself show that there has been a miscarriage of justice, although there may be cases where the order consented to is so far removed from justice and equity that a court may infer that a miscarriage of justice occurred: In the marriage of Holland (1982) FLC 91-243; and
7.The establishment of a miscarriage of justice does not automatically result in the varying or setting aside of orders. The applicant must satisfy the Court not only that there has been a miscarriage of justice, but also that it is appropriate for the Court to exercise its discretion to vary or set aside the order: Barker v Barker (2007) 36 Fam LR 650 at [134].
The evidence and submissions – the husband’s application under s 79A
128As noted above, at the hearing before me the husband confirmed that his application pursuant to s 79A was based on two grounds:
1.his contention that at the time the property orders were made the wife failed to disclose what he now alleges were superannuation interests held by her; and
2.his contention that his consent to the orders was at least in part based on his understanding that he was the father of the children, and that understanding informed his consideration of the factors set out in s 75(2) of the Act, and what orders would be just and equitable in all the circumstances.
129At the hearing on 3 February 2017, when asked by me to clarify the grounds of his application the husband said:
Fraud, suppression of evidence, especially in relation to her superannuation. I mean, she works at the [Company A] for 15 years and didn’t even throw that up at the court. Yes, and given (sic) false evidence. Because obviously when she put in her application she didn’t declare her superannuation and it’s a property settlement.
130The following exchange then took place:
[HIS HONOUR]: So are you saying that at the time of the property settlement orders she did not disclose her superannuation at all, or that she…
[THE HUSBAND]: Not at all, your Honour.
[HIS HONOUR]: And what – what superannuation do you say she didn’t disclose?
[THE HUSBAND]: 15 years of working for [Company A], your Honour. No, even longer. We were actually going out for 18 years, for 17 of them she worked at [Company A].
[HIS HONOUR]: So if I go back to the documents on the files sworn by her in support of the original property settlement orders and if I find on those documents that she has disclosed superannuation entitlements, does that mean that you concede that your application to set aside the property orders must fail or not?
[THE HUSBAND]: You can go read it because it’s not there, your Honour.
[HIS HONOUR]: How about [you] answer my question.
[THE HUSBAND]: If it’s there, but I never got given a copy of it, so – and I never saw it and it was never mentioned in the splitting up.
[HIS HONOUR]: All right. But I’m - I want to make sure that I put the question to you fairly.
[THE HUSBAND]: Yes.
[HIS HONOUR]: So – because I understand what you’re saying.
[THE HUSBAND]: Yes.
[HIS HONOUR]: You’re saying that the – it may or may not be the only ground, but the central ground of your application to set aside the property orders is that you say that at the time those orders were made she did not disclose her superannuation at all.
[THE HUSBAND]: At all.
[HIS HONOUR]: Is that correct?
[THE HUSBAND]: Correct. Yes, your Honour.
131The husband then clarified that even if I found that superannuation was disclosed, he would maintain that the ground on which the property order should be set aside is that the percentage division was reached on the basis of false evidence that the children were his.
132As foreshadowed with the husband and indeed as I was invited by him to do, I have reviewed the application for consent orders jointly filed by the parties on 9 May 2000 and sworn by each of them. It was on that joint application that the property orders now complained of were made.
133The form required each party to confirm on oath that they had no interest in property or a financial resource not described in Part F of the form, and that where they gave any estimate in the application it was based on knowledge, information and belief and was given in good faith.
134In the relevant part of the form the wife deposed that she had [Superannuation A] to which she had contributed $6,422.00 over a period of four years. The husband deposed that he had Superannuation A to which he had contributed $11,810.00 over a period of 14 years, and [Superannuation B] to which he attributed a value of $13,550.00. The page of the form on which that information appears is signed by both parties and by their solicitors.
135Self-evidently, the husband’s contention at the hearing before me that the wife had not disclosed superannuation “at all” is wrong.
136Indeed, the orders to which the parties expressly consented provided for each of them to keep their respective superannuation entitlements. That in turn reflected an agreement set out in a deed which the parties had registered pursuant to s 86 of the Act on 20 March 2000.
137In addition, the wife disclosed an interest in [“Investment Service A”] valued at $4,189.00. In submissions in the present proceedings it was stated on her behalf that the investment related to her employment at Company A.
Consideration of the husband’s application pursuant to s 79A of the Act
138As is apparent from what is set out above, the central contention of the husband in support of his application for orders pursuant to s 79A of the Act, that the wife had failed to disclose any superannuation entitlements at the time the property orders were made, is demonstrably wrong.
139The second contention made by the husband, broadly expressed, is that his consent to the property orders was induced by the giving of false evidence by the wife as to the circumstances of conception of the children, or the suppression of evidence by her in relation to that issue.
140Pursuant to s 79(4)(e) of the Act, in considering what order if any should be made for the alteration of the property interests of parties the court is required to take into account the matters referred to in sub-s 75(2) so far as they are relevant.
141Subsection 75(2)(c) requires the court to take into account “whether either party has the care or control of a child of the marriage who has not attained the age of 18 years”. At the time the property orders were made, neither child had reached the age of 18.
142The definition of “child of a marriage” in s 4 of the Act expressly includes children who are, under ss 60H(1) or 60HB, the child of the husband and wife.
143Even were that not the case, sub-s 75(2)(d) requires the court to take into account the commitments of each of the parties that are necessary to enable them to support a child that the party has a duty to maintain. It is beyond dispute that even on the husband’s case at its highest the wife had at the relevant time a duty to maintain the children.
144Accordingly, the second contention raised by the husband is without merit.
145I conclude, therefore, that the husband’s application pursuant to s 79A of the Act is doomed to fail and should accordingly be summarily dismissed.
146Even had I not reached that conclusion, I would have concluded that to permit the continuation of the application would be an abuse of process.
147In an affidavit sworn on 16 November 2009, the husband said this:
Notably, [the wife] never declared at our original settlement that she had 20 years of Superannuation from [Company A] in Assets. This was back when we were originally separated in 2000 and working out settlement.
148Self-evidently, the asserted facts which are at the heart of the husband’s present application (and which in any event are, as already noted, wrong) have been within his knowledge at least since that affidavit was sworn some seven years prior to the filing of the present application.
149The evidentiary issues which would be faced in circumstances where the events complained of occurred in 2000, do not require explanation. It would, in my view, be manifestly unfair to the wife to permit the application to proceed in the face of the husband’s delay, even were he able to establish the non-disclosure of which he complains.
150I propose to dismiss that part of the husband’s application which seeks orders pursuant to s 79A of the Act.
The law – vexatious litigation
151As already noted, the court has the power to ensure that its processes are not abused. That power extends to the power to prevent frivolous or vexatious litigation.
152As Gaudron J observed in Ridgeway v The Queen (1995) 184 CLR 19 at 74 to 75 (footnotes omitted):
The powers to prevent an abuse of process have traditionally been seen as including a power to stay proceedings instituted for an improper purpose, as well as proceedings that are “frivolous, vexatious or oppressive”. This notwithstanding, there is no very precise notion of what is vexatious or oppressive or what otherwise constitutes an abuse of process. Indeed, the courts have resisted, and even warned against, laying down hard and fast definitions in that regard. That is necessarily so. Abuse of process cannot be restricted to “defined and closed categories” because notions of justice and injustice, as well as other considerations that bear on public confidence in the administration of justice, must reflect contemporary values and, as well, take account of the circumstances of the case. That is not to say that the concept of “abuse of process” is at large, or indeed, without meaning. As already indicated, it extends to proceedings that are instituted for an improper purpose and it is clear that it extends to proceedings that are “seriously and unfairly burdensome, prejudicial or damaging” or “productive of serious and unjustified trouble and harassment”.
153In Batistatos v Roads & Traffic Authority of New South Wales (2006) 226 CLR 256 (“Batistatos”) at [15] the High Court said, “to that it should be added that the power to deal with procedural abuse extends to the exclusion of particular issues which are frivolous and vexatious” (citations omitted).
154That observation has particular resonance in this case.
155While the relevant power is unquestioned, it must be exercised with caution. As Kirby J said in Batistatos (supra) “the common law has long been defensive of the right that all persons enjoy to have access to the courts and not to be denied such access save in the most exceptional of circumstances”: [159].
156The Full Court in Marsden & Winch (2013) FLC 93-560 (“Marsden”) considered the authorities referred to above and confirmed the applicable law to proceedings seeking an order under s 118 of the Act, as operative at that time, which read:
(1)The court may, at any stage of proceedings under this Act, if it is satisfied that the proceedings are frivolous or vexatious:
(a)dismiss the proceedings;
(b)make such order as to costs as the court considers just; and
(c)if the court considers appropriate, on the application of a party to the proceedings - order that the person who instituted the proceedings shall not, without leave of a court having jurisdiction under this Act, institute proceedings under this Act of the kind or kinds specified in the order;
and an order made by a court under paragraph (c) has effect notwithstanding any other provision of this Act.
(2)A court may discharge or vary an order made by that court under paragraph (1)(c).
157As the court observed in Marsden (supra) at [132] to [134]:
The language of s 118 makes it clear that Parliament intended the court to have, in defined circumstances, the power to deprive a litigant of the right to have access to the courts and only in accordance with the provisions of s 118 (emphasis added).
It is a course that should be reserved for the clearest of cases…
…an order pursuant to s118 is a step not to be undertaken lightly and deprives a person subject to such an order of the same level of access to the Court as enjoyed by others.
158Section 118 was amended with effect from 11 June 2013 and now simply provides as follows:
118 Frivolous or vexatious proceedings
The court may, at any stage of proceedings under this Act, if it is satisfied that the proceedings are frivolous or vexatious:
(a)dismiss the proceedings; and
(b)make such order as to costs as the court considers just.
159Section 118 now accordingly provides for the dismissal of instant proceedings which are frivolous or vexatious; it no longer contains any provision for restraint of a party from commencing further proceedings.
160Those provisions are now contained in Part XIB of the Act.
161While there is no provision for a party to be “declared a vexatious litigant” as sought by the wife, an order pursuant to s 102QB(2)(b) would have the effect sought.
162Section 102QB of the Act provides:
102QB Making vexatious proceedings orders
(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 tribunals; or
(b)a person, acting in concert with another person who is subject to a vexatious proceedings order or who is covered by paragraph (a), has instituted or conducted vexatious proceedings in an Australian court or tribunal.
(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.
(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)a person against whom another person has instituted or conducted vexatious proceedings;
(d)a person who has a sufficient interest in the matter.
(4)The court must not make a vexatious proceedings order in relation to a person without hearing the person or giving the person an opportunity of being heard.
(5)An order made under paragraph (2)(a) or (b) is a final order.
(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
(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.
163The differences between s 102QB and s 118 in the terms considered by the Full Court in Marsden (supra) are not insignificant. Prior to the 2013 amendments to the Act, to make an order pursuant to s 118 prohibiting or restricting the commencement of further proceedings, it was necessary for the court to be satisfied that the proceedings then before it were frivolous or vexatious, and if so satisfied to consider whether it was appropriate to make the order.
164In my view, s 102QB now requires the court to be satisfied both that the person against whom the order is sought has instituted or conducted vexatious proceedings in a court or tribunal of the Commonwealth, a State or a territory and that the institution or conduct of such proceedings has been “frequent”. It is no longer sufficient for the court to be satisfied that the proceedings presently before it are frivolous or vexatious, if a restraint against future proceedings is to be imposed.
165Notwithstanding that legislative change, the principles informing a consideration of whether particular proceedings are “vexatious” have not changed. The Full Court in Marsden (supra) agreed with the construction of the word “vexatious” adopted by Roden J in Attorney-General v Wentworth (1988) 14 NSWLR 481 at 487 where His Honour said:
…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.
…
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”…
166Section 102Q(1) contains a non-exclusive definition of “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.
167While the express reference in the repealed s 118 to proceedings which are “frivolous” does not appear in s 102QB, in my view it is beyond doubt that proceedings appropriately characterised as “frivolous” are an abuse of process and accordingly captured in the definition of “vexatious proceedings” for the purpose of that section.
168As already noted, if the order proposed by the wife is to be made I must be satisfied not only that proceedings instituted or conducted by the husband are or have been vexatious, but also that the relevant institution or conduct of the proceedings has been “frequent”. The concept of frequency must, in my view, be given its ordinary meaning and will necessarily entail a subjective assessment.
The litigation instituted and conducted by the husband
169The husband has, since the parties separated in January 2000, instituted the proceedings summarised below. Some have been referred to earlier in these reasons, but are listed again in the context of the issue now under consideration.
170On 15 November 2000, the husband filed an application alleging that the wife had contravened the parenting orders made by consent on 1 March 2000. Following counselling, that application was adjourned generally on 28 November 2000.
171Further parenting proceedings were commenced by the wife on 14 March 2001 and the husband responded on 5 June 2001.
172On 27 July 2001 the husband filed an application alleging again that the wife had contravened the parenting orders made by consent on 1 March 2000. That application was struck from the list on 21 August 2001 as neither party appeared at the hearing.
173The parenting proceedings commenced by the wife on 14 March 2001 proceeded to trial on 18 and 19 February 2002 and orders were made on 28 May 2002.
174On 14 June 2002 the husband filed an application alleging that the wife had contravened those orders. On 2 July 2002, the wife having entered a plea of not guilty, the husband was granted leave to withdraw the application and no order as to costs was made.
175On 23 October 2002 the husband commenced fresh proceedings seeking changes to the orders made on 28 May 2002. On 13 December 2002 he filed a further application seeking orders in relation to time to be spent with the children at Christmas that year. On 18 December 2002, both applications were dismissed and the husband was ordered to pay the wife’s costs.
176Only a few days later, on 23 December 2002, the husband filed a further application seeking to alter the parenting orders made on 28 May 2002. That application was resolved by the making of consent orders on 14 January 2003.
177There was then no further litigation between the parties until the husband filed a further contravention application on 13 February 2006. That application was dismissed on 27 February 2006 after the wife entered a plea of not guilty. Further orders were made for the wife to file an application for variation of the existing parenting orders.
178On 27 March 2006, the husband filed a further application seeking variation of the parenting orders which had been made by consent on 14 January 2003.
179On 6 April 2006, he filed a further contravention application. That application was listed for hearing on 16 May 2006, but the hearing was vacated on 12 May 2006 when orders were made for the preparation of a family report.
180The husband then did not attend for a listed conciliation conference on 20 June 2006 until after the conference had been convened and adjourned on the basis of his non-attendance. That conference was adjourned to 8 September 2006. Again, the husband did not attend and the proceedings were adjourned to a duty Judge list on 16 October 2006.
181Again, the husband did not attend. Orders were made in the terms proposed by the wife, and the application filed by the husband on 27 March 2006 was dismissed.
182There was then a hiatus until 11 March 2008, when the husband filed the further application for variation of the parenting orders referred to earlier in these reasons. On 30 April 2008 an order for a family report was made.
183On 19 May 2008 the husband filed a further application seeking orders in relation to the July 2008 school holidays. That application was heard on 16 June 2008 and dismissed.
184The husband’s application filed on 11 March 2008 was listed for a special appointment on 29 July 2008. The day before the hearing, the husband advised the court by facsimile transmission that he could not attend due to unspecified “serious medical reasons” and provided a medical certificate. The application was adjourned generally.
185On 12 August 2008 the husband filed an application seeking the disqualification of the Honourable Justice Penny. Her Honour dealt with that application on 26 August 2008, and disqualified herself.
186The husband then filed on 4 December 2008 the application referred to at paragraph 22 of these reasons. That application was dismissed by consent on 9 February 2009.
187On 17 March 2009 he filed the amended application already referred to, seeking parenting orders.
188On 18 May 2009 the husband filed an application seeking the disqualification of Crisford J. That application was dismissed on 19 May 2009, and the application filed by the husband on 11 March 2008 was listed for trial on 13 July 2009.
189On 10 July 2009 the husband sent to the court a medical certificate asserting that he was unwell. The application was then relisted to 31 August 2009.
190The husband attended that hearing and asserted that he had not been served with various documents. The hearing proceeded, albeit with orders being made requiring both parties to file and serve affidavit material in relation to the question of service, and the decision was reserved.
191On 18 September 2009 the husband filed the application seeking parentage testing referred to earlier in these reasons.
192On 21 September 2009 the husband’s application filed on 11 March 2008 as amended on 17 March 2009 was summarily dismissed.
193In her reasons for decision published that day, Crisford J made the following observation:
What does cause considerable disquiet is the obvious use of court proceedings for an apparently vexatious and frivolous purpose. Again, this is highlighted by the nature of the orders sought by [the husband] on 4 December 2008. The continuation of proceedings serves no purpose save to aggravate [the wife] and take up an inordinate amount of court time.
194Subsequently, on 26 February 2010, an order was made requiring the husband to pay the wife’s costs of those proceedings on an indemnity basis fixed at $16,500.00.
195On 26 October, 2009, the husband’s ex parte application filed on 18 September 2009 seeking parentage testing was adjourned to 19 November 2009 to be heard with an enforcement application which had been brought in the meantime by the Child Support Registrar.
196The parties attended a procedural conference on 24 February 2010 at which agreement was reached as to the manner in which the proceedings were to continue. The wife agreed to the husband’s application for parentage testing proceeding to a hearing notwithstanding the dismissal of his previous application in that regard.
197The proceedings were listed for trial on 6 July 2010. On 28 June 2010 the husband filed an application seeking that the trial date be vacated, that the proceedings be rescheduled to a date after 10 August 2010 to allow him to return to Western Australia, and that he have an extension of time within which to file his affidavit of evidence. On 28 June 2010 the trial date was vacated and a new trial date allocated for 18 August 2010, when his application was summarily dismissed in the circumstances outlined earlier in these reasons. Orders were made for the filing by him of evidence and submissions in response to the wife’s application for an order for indemnity costs.
198On 11 October 2010 the husband filed an affidavit which he characterised as being in support of a “cross application to costs”.
199On 10 November 2010 orders were made in relation to the enforcement of existing obligations of the husband.
200On 28 April 2011, orders were made for the husband to pay the wife’s costs in relation to his application which was summarily dismissed on 18 August 2010, in a total sum of $11,535.00 and such additional further sum as the court would consider appropriate upon completion of a formal assessment of the balance of the costs claimed by the wife.
201On 17 October 2011, an order was made quantifying that further sum in the amount of $24,658.00.
202No further proceedings occurred in this court until the filing on 7 July 2016 of the husband’s application which (as amended) is the subject of this judgment.
203The parties have also been involved in proceedings in other courts.
204On 4 October 2010 the husband filed a notice of appeal in relation to orders made by a Magistrate on 8 September 2010. He was granted leave to discontinue his appeal on 21 December 2010, and ordered to pay the wife’s costs in the sum of $1,000.00.
205On 26 March 2008, the wife obtained a violence restraining order against the husband in the Magistrate’s Court at [Suburb B]. On 9 September 2008 the husband filed in the District Court an application for leave to appeal out of time against the making of that order. His appeal was dismissed on 20 January 2009, and he was ordered to pay the wife’s costs.
Consideration of the wife’s application for a vexatious proceedings order
206The first question for consideration is whether the husband has instituted or conducted vexatious proceedings.
207It will be clear from the reasons already set out that I regard the present proceedings as being vexatious.
208It is also clear that the application filed by the husband on 4 December 2008 was frivolous, given the husband’s own explanation that it was filed because he was “having a bad day” and his later consent to its dismissal.
209On 21 September 2009, Crisford J characterised the husband’s conduct to that point as “the obvious use of court proceedings for an apparently vexatious and frivolous purpose.” I accept and adopt Her Honour’s characterisation.
210Since that observation was made, however, the only proceedings commenced by the husband are his discontinued appeal commenced on 4 October 2010, and the present proceedings.
211While I have no difficulty in finding that the husband has instituted and conducted vexatious proceedings, I am unable to conclude in those circumstances that he has done so “frequently”, at least in recent years.
212I do not consider it an appropriate exercise of discretion to base a vexatious proceedings order in late 2017 on the frequency of vexatious conduct between 2001 and 2009.
213Not without some reluctance, I decline to make the order sought by the wife.
214I do, however, propose to make orders which, while not inhibiting in any way the husband’s access to the Court, will protect the wife from incurring further expense in relation to any future application unless and until it is found to have prima facie merit.
215That outcome can be achieved by ordering, as Crisford J did previously, that any future application by the husband be listed initially for directions only, before a Judge, without any requirement for service on the wife, participation by her in such directions hearing, or filing of answering documents, unless and until orders are made requiring her to do so.
Proposed Orders
216I propose to make the following orders:
1.The amended Form 1 application of [Mr Breech] (“the Applicant”) filed on 17 October 2016 be and is hereby summarily dismissed.
2.In respect of any future application filed by the Applicant in this Court:
(a)such application once filed be listed promptly before a Judge for directions only;
(b)such listing be on an ex parte basis;
(c)there be no requirement on the part of [Ms Rosaline] (“the Respondent”) to attend or be represented at such initial directions hearing even if served; and
(d)there be no requirement on the part of the Respondent to file any responding documents unless ordered to do so.
3.The amended Form 1A response of the Respondent filed on 8 November 2016 otherwise be and is hereby dismissed.
I certify that the preceding [216] paragraphs are a true copy of the reasons for
judgment delivered by this Honourable Court
Associate
9 October 2017
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