BURNS & SELLERS

[2019] FamCA 322

FAMILY COURT OF AUSTRALIA

BURNS & SELLERS [2019] FamCA 322

FAMILY LAW – INJUNCTION – where the husband seeks an adjournment on the basis that he has not been served with the Application in a Case – where the husband’s adjournment application was dismissed – where the husband has engaged in excessive and offensive communication with the wife’s lawyer – where an injunction is granted under s 114 of the Family Law Act 1975 to limit the husband’s communication with the wife’s lawyer.

Family Law Act 1975 (Cth) s 114

APPLICANT: Ms Burns

RESPONDENT: Mr Sellers

FILE NUMBER: PAC 5854 of 2016

DATE DELIVERED: 18 January 2019

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Hannam J

HEARING DATE: 17 September 2018

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Karras Partners Lawyers

THE RESPONDENT: In person

Orders

1. That the husband be restrained from:

   (a)       Communicating with the wife’s lawyers other than in writing via email and limited to not more than one item of email correspondence, between the hours of 10am and 1pm on Wednesday and Friday of every week;

   (b)       Making any personal, offensive, insulting or scandalous comments in any such communications.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Burns & Sellers has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 5854 of 2016

Ms Burns

Applicant

And

Mr Sellers

Respondent

REASONS FOR JUDGMENT

Introduction

1. The parties have been engaged since December 2016 in property and parenting proceedings involving their two young sons following the breakdown of their relationship.

2. There have been numerous applications and court events and voluminous correspondence has passed between the lawyers for the respective parties in the course of the proceedings. 

3. From time to time the husband has represented himself and as such has communicated directly with the wife’s lawyer.  It is the wife’s case that the volume of email communication sent by the husband is unnecessary and that the content of many of the emails is offensive and scandalous. These matters she contends inhibit the resolution of the dispute in a timely and cost effective manner. 

4. The wife seeks an order placing some restraint on the frequency and content of the husband’s communication with her lawyer.  The wife’s application for such an order is opposed by the husband.

5. The question for me to determine is whether it is just and convenient to grant the injunction sought by the wife in the proceedings.

Background

1. The parties have been involved in litigation concerning property and parenting since December 2016.  In May 2018 the husband’s former solicitors ceased acting for him and since then he has generally represented himself. 

2. The husband has sent over 100 emails to the wife’s lawyer between 17 May 2018 and the date of the affidavit in support of this application being 11 July 2018.  On some occasions the husband sent only one email on a given day but on most days the husband has sent between two and ten emails to the wife’s lawyer during this period on a given day. The wife’s lawyer also tendered copies of further emails sent by the husband until the day prior to the interim hearing.

3. The “subject” completed by the husband of many of the emails sent during this period indicates the nature of the communication.  For example the subject of the email is often “your conduct in court today”, “talking to each other”, or “conduct”, and these emails contain complaints about the conduct of the wife’s lawyer in approaching the husband directly or in court, inform the husband’s lawyer about an intention to make a complaint against him to the office of the Legal Services Commissioner or matters of a similar ilk.  On other occasions while the “subject” of the husband’s email appears to suggest that the communication relates to parenting matters, the content of these emails also is concerned only with the husband’s complaints about the alleged conduct of the wife’s lawyer.  None of the 28 emails exhibited in the proceedings sent over the one month period between 23 May 2018 and 25 June 2018 deal with any aspect of the parenting or property proceedings and all relate to the alleged conduct of the wife’s lawyer.

Adjournment application

1. On 17 September 2018, the date fixed for hearing of the wife’s application, the husband who represented himself sought that the proceedings be adjourned as he contended that he had not been served with the Application in a Case or the supporting affidavit.  The husband’s application for an adjournment was dismissed with reasons for that dismissal to be published at a later date.  These are those Reasons.

2. The wife’s application seeking the injunction and supporting affidavit were filed on 12 July 2018. 

3. An affidavit of service of a lawyer employed in the wife’s solicitor’s legal practice and supporting tracking documents from Australia Post indicate that the Application in a Case and affidavit were posted by express registered post on 16 July 2018 and delivered to the husband’s address for service on 17 July 2018. 

4. The first return date for the Application in a Case was 14 August 2018.  Notwithstanding that the wife’s lawyer attempted on numerous occasions to seek an adjournment of this date as it coincided with appeal proceedings in this matter before the Full Court, the husband did not agree to this occurring.  As a result the husband did not attend the 14 August 2018 court event before a Registrar.  At this court event the Registrar ordered the husband to file and serve a Response and affidavit to the wife’s Application in a Case by 20 August 2018.

5. On 16 August 2018 the husband was notified by email of the orders made by the Registrar in his absence on 14 August 2018. 

6. On 24 August 2018 there was another court event before Justice Foster in relation to another application in the proceedings at which the husband was present.  There was discussion between the wife’s lawyer and Justice Foster in relation to consolidating the two applications in the presence of the husband although ultimately the two applications were not consolidated.

7. The husband did not comply with directions to file a Response or any supporting affidavit upon which he may seek to rely.

8. At a court event before a Registrar on 13 September 2018, a few days before the hearing, the husband continued to assert that he had not been served with the application.  The wife’s lawyer informed me at the hearing that the Registrar on that occasion offered to make copies of the documents available to the husband at the conclusion of court but the husband left court prior to the completion of the list.  The husband took issue with the events occurring as related by the wife’s lawyer.

9. There was also further email correspondence between the parties the following day, on 14 September 2018 in which the husband continued to assert that he had not received the application.

10. I am satisfied that the husband was well aware of the wife’s application for an injunction.  In particular I am satisfied that the Application in a Case and supporting affidavit were served upon him by registered mail on 17 July 2018 and that he was made aware of orders to file a Response and an affidavit but chose not to do so.  There is no evidence other than the husband’s assertions to this effect that he was not aware of the application and that he did not have any opportunity to file material in response.

11. In these circumstances the application for an adjournment was refused and I reserved my reasons for decision. The wife’s Application in a Case then proceeded on an undefended basis.

12. The parties then each had an opportunity to make submissions in relation to the orders sought by the wife.  On behalf of the wife it was submitted that the sheer volume of emails received by her lawyer was causing the wife to accrue excessive legal fees, resulting from her lawyer having to read and consider each of the emails. The wife’s lawyer also submitted that the content of the emails is offensive and derogatory and improperly calls into question the lawyers’ professionalism in relation to his duty to the court.

13. The husband made short submissions in which he stated that the emails pertained to parenting issues and are not harassing or threatening in nature.

The law and discussion

1. The wife seeks an order in the following terms:

   That pending further Order, the husband be restrained from:-

   1.1Communicating with the respondent’s lawyers other than in writing and limited to not more than one item of correspondence, between the hours of 10:00am and 1:00pm on Wednesdays and Fridays of every week. (sic)

   1.2Making any personal, offensive, insulting or scandalous comments in any such communications.

2. The wife relies upon the power in section 114(3) Family Law Act 1975 (Cth) (“the Act”) for the order she seeks. Her lawyer also referred the court to rule 1.04 and rule 1.07 of the Family Law Rules 2004 (Cth) (“the Rules”).

3. Section 114(3) provides:

   A court exercising jurisdiction under this Act in proceedings other than proceedings to which subsection (1) applies may grant an injunction, by interlocutory order or otherwise (including an injunction in aid of the enforcement of a decree) in any case in which it appears to the court to be just or convenient to do so and either unconditionally or upon such terms and conditions as the court considers appropriate.

4. The power that is sought to be exercised is a broad power but its exercise must be relevant to the substantive proceedings.

5. The substantive proceedings which relate to the property of the parties and the best interests of their two young children have been protracted with little progress having been made to date.  The wife has engaged a lawyer and although the husband has also engaged lawyers from time to time he has for a significant period acted for himself.  In this regard it has been necessary for him to communicate with the wife’s lawyer about matters relating to the proceedings.  However, the communication under consideration today from May 2018 until mid-July 2018 rarely related to the substantive proceedings.  In exercise of his professional duties however, the wife’s lawyer was required to consider all of the husband’s emails pursuant to a legitimate expectation that one of them may be related to the proceedings.  The lawyer’s consideration of the emails resulted in associated costs to the wife.

6. The husband’s emails are in my view also offensive and scandalous in relation to the wife’s lawyer.  For example the husband makes following remarks in the following emails.

   ·23 May 2018 – “You [the husband’s lawyer] have shown a tendency to make statements you know not to be true”.

   ·28 May 2018 – “In addition to repeatedly making statements that you know to be untrue it seems that you are making a concerted effort to cause delay”.

   ·18 June 2018 – “…one of the ‘strategic advantages’ of [the wife’s lawyers firm] is the ‘relationship’ [the wife’s lawyer] ‘has with various family court judges’”.

   ·2 August 2018 – “[the wife’s lawyer] make statements that he knows to be untrue and that are misleading”, the wife’s lawyer is “telling lies” and is “dishonest” or “may very well have a mental illness, personality disorder or some kind of pathological condition that makes it difficult for him to differentiate between truth and non-truth”.

7. Although the vast majority if not all of the husband’s emails under consideration involve complaints of a personal nature about the wife’s lawyer and his conduct, many also require a response from the lawyer.  Dealing with these emails has had the effect of distracting the wife and her lawyer from the substantive proceeding and has been an impediment to resolving the issues in dispute between the parties in a timely manner.  Attending to the emails has also not promoted the saving of costs but rather generated increased costs. 

8. In my view, it is just and convenient to grant the injunction sought by the wife.  To the extent that the husband may argue that he may have a legitimate claim about the conduct of the wife’s solicitor, it is clear from the emails themselves that he is well aware of the correct and appropriate channels to make such a complaint and will not be prevented from doing so if the injunction is made. 

9. Further, the restraint sought by the wife does not prevent the husband from communicating with her lawyer at all but seeks to contain that communication to a single item of correspondence (presumably by way of email, though the proposed order itself did not specify this) to be sent during a three hour period on two business days each week.  In my view, this is reasonable and provides ample opportunity for the husband to communicate with the wife’s solicitor about matters which are legitimately connected to the proceedings.

10. So far as the restraint in relation to the content of the email is concerned, I am also of the view that there can be no possible justification by the husband for making offensive and scandalous comments about the wife’s lawyer in correspondence with him (or to third parties such as the ICL for that matter, though no restraint is sought in respect of that correspondence).  I do not accept the submissions made by the husband that this content is not offensive or scandalous.  

11. Accordingly for the foregoing reasons I am satisfied that it is just and convenient to grant the injunctions sought.  The injunctions will be granted as sought with the one amendment of inserting the words “via email”.  It is clear from the tenor of the argument and the nature of the orders themselves (specifying as they do that the correspondence be sent between the hours of 10am and 1pm) that the proposed orders relate to email communication.

I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 18 January 2019.

Associate: 

Date:  18 January 2019