Ciglaric and Ciglaric

[2018] FamCA 602

FAMILY COURT OF AUSTRALIA

CIGLARIC & CIGLARIC [2018] FamCA 602

FAMILY LAW – PRACTICE AND PROCEDURE – Application by husband seeking leave to review a property order made by consent in 1996 and if successful that there be a division property whereas the husband receive 40 per cent and the wife receive 60 per cent – Whether Court has jurisdiction to hear such an application – Whether the Court should make an order that husband be declared a vexatious litigant after consideration of husband’s submissions – Husband’s application dismissed as being a frivolous or vexatious proceeding.

Family Law Act 1975 (Cth)

APPLICANT: Mr Ciglaric

RESPONDENT: Ms Ciglaric

FILE NUMBER: HBC 227 of 2018

DATE DELIVERED: 15 May 2018

PLACE DELIVERED: Hobart

PLACE HEARD: Hobart

JUDGMENT OF: Benjamin J

HEARING DATE: 15 May 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: No appearance

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT: No appearance

SOLICITOR FOR THE RESPONDENT:

Orders

1. Pursuant to s 118 of the Family Law Act 1975 (Cth), the application filed by Mr Ciglaric filed 12 March 2018 be dismissed being a frivolous or vexatious proceeding.

IT IS DIRECTED

1. The copy of the reasons be taken out and placed on the court file.

2. The following documents be forwarded by the Registry to the applicant and respondent, by ordinary pre-paid post at their last known residential address set out in the application:-

   (a)a copy of the initiating application;

   (b)a copy of the order made 22 March 2018;

   (c)a copy of the reasons; and

   (d)a copy of this order.

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 Ciglaric & Ciglaric has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

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

FAMILY COURT OF AUSTRALIA AT HOBART

FILE NUMBER: HBC 227 of 2018

Mr Ciglaric

Applicant

And

Ms Ciglaric

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. This is a proceeding which was commenced by Mr Ciglaric (‘the applicant’) on 12 March 2017, and was listed for directions and consideration of the proceedings today.  In his application against Ms Ciglaric (‘the respondent’) filed 12 March, the applicant sought the following four orders:-

   (1)A review of order number 315 made by Butler J;

   (2)A request for fairer apportionment than previously made;

   (3)The sale of a property at B Street, Suburb C (‘the Suburb C property’), in order to satisfy the purpose of the apportionment; and

   (4)A 60/40 settlement with the respondent.

2. On 22 March 2018 in chambers, this Court made orders that the applicant be restrained from serving the documents upon the respondent, and that within 28 days from that date the applicant file an amended application setting out precisely which particular order of Butler J he sought to review.  The matter was then listed for a directions today at 9.30 am, with the applicant to have available written submissions as to the nature of the review sought, including submissions as to the power of the Court to review the subject order. 

3. Further, the applicant was to make submissions as to whether, given the history of the proceedings, the Court ought or ought not to consider of its own initiative whether a vexatious proceeding order should be made pursuant to s 102QB of the Family Law Act 1975 (Cth) (‘the Act’). The matter came before me this morning, and inquiries have been made outside the Court, including the calling of the applicant, and there is no appearance by him.

Background

1. It is of value to set out something of the background to which the Court had learnt from looking at the file.  The applicant was born in 1940, and is aged 78.  The respondent was born in 1952 and is aged 65.  It appears on the application that the respondent moved to Australia in 1975 and the parties commenced cohabitation in 1976.  There are three children of the relationship, born in 1976, 1977 and 1984.  None of these children are now under the age of 18 years.

2. From the material on the file it is clear that the parties separated in January 1991, and the wife commenced property proceedings in that year.  The matter was settled by consent in April 1991.  In mid-1991 the parties recommenced cohabitation, and in September 1991 they purchased the Suburb C property.  In March 1992 the parties separated a second occasion.  The respondent sought restraint orders against the applicant, and the applicant was remanded in custody until 20 March 1992. 

3. On 12 March 1992 the respondent initiated proceedings seeking transfer of the Suburb C property to her.  On the 20 March 1992 an interim restraint order was made and the applicant was released from custody.  In August 1993 an application for divorce was filed, and the parties’ marriage was dissolved in November 1993.  The decree became absolute in December 1993.  In terms of the proceedings, there were conciliation conferences in April and May of 1996, and in August 1996; the proceedings were settled by a consent order.  In November 1996 there was an application seeking orders enabling the Registrar to sign a memorandum, and that order was made later that month. 

4. On 23 August 2002 the respondent filed an initiating application seeking review of the consent order made in August 1996. That application was subsequently dismissed. On 17 March 2018, the applicant filed the application to which I have referred to earlier seeking review of an order of Butler J. It is not clear to which order the applicant is seeking to review, hence the directions made by this Court on 22 March 2018. The inference is, given the nature of the application, that it is the consent order made on 15 August 1996. There is no evidence as to the basis upon which the applicant seeks to review that order, whether it is an application under s 79A(1)(a) of the Act or whether it is a misconceived appeal application decades out of time.

5. The Court has to have some material before it, including the knowledge of the nature of the application, under what jurisdiction it is sought, and those matters to which I referred to in the March order. The Court took the trouble today to arrange for an interpreter to be available for the applicant and endeavoured to elicit from the applicant details and particulars of that which he seeks from the Court. He has not filed the application nor appeared today. Section 118 of the Act was previously the section which dealt with vexatious litigants. That is now dealt with under s 102Q. Section 118 says:-

   The court may at any stage of proceedings, 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.

The Law

1. Section 102Q provides a definition of vexatious proceeding. It may be that the definition relates to proceedings under that section, but given the use of vexatious proceeding within section 102Q, I am satisfied that it fits the broader definition of what can be a vexatious proceeding under the Act. A vexatious proceeding is defined under s 102Q, which provides:-

   "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.

1. One of the types of proceedings which can be regarded as a vexatious proceeding is one referred to under s 102Q(c), which provides that it is a proceeding instituted or pursued in a Court or Tribunal without reasonable grounds. In this case, the applicant was asked to provide details and particulars of the basis of the proceeding so that if and/or when it was served, the respondent had some idea of the nature of the proceedings, the relief sought and the basis upon which the proceeding was conducted.

2. The applicant has not provided that information. He has not appeared today, and he has not filed any material in accordance with the direction. As such, I am satisfied that this proceeding was instituted in this Court without reasonable ground, or, at least, pursued in this Court without reasonable ground. As such, I intend to dismiss the proceeding as a vexatious proceeding pursuant to s 118 of the Act.

3. I had raised with the applicant on the last occasion whether this was a matter which ought to be dealt with, or considered to be dealt with by the Court on its own motion under s 102Q of the Act. Given the history to which I have referred to in these reasons, I am not satisfied that it would reach the levels implicit in s 102Q, and I do not, at this stage, consider that it would be appropriate to make or consider making such a Draconian order in these proceedings.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin delivered on 15 May 2018.

Associate: 

Date:  8 August 2018