DARLEY & DARLEY

[2019] FamCA 206

FAMILY COURT OF AUSTRALIA

DARLEY & DARLEY [2019] FamCA 206

FAMILY LAW – ORDERS – Contravention - Where the applicant alleges that the respondent has contravened Orders on ten occasions without reasonable excuse – Where the evidence fails to establish a prima facie case in relation to four of the alleged contraventions – Where one contravention is found to be proved but no sanction is imposed – Where the other five alleged contraventions are dismissed – Where the mother has filed three Applications - Contravention alleging 67 separate contraventions and only two have been proved – Where the applicant is required to show cause as to why a vexatious proceeding order should not be made against her.

FAMILY LAW – COSTS – Where the applicant shall pay the costs of the independent children’s lawyer in the sum of $1,528 within 30 days.

Australian Passports Act 2005 (Cth)
Family Law Act 1975 (Cth)

APPLICANT: Ms Darley

RESPONDENT: Mr Darley

INDEPENDENT CHILDREN’S LAWYER: Mr Kingston

FILE NUMBER: BRC 2317 of 2013

DATE DELIVERED: 5 April 2019

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Carew J

HEARING DATE: 2 April 2019

REPRESENTATION

FOR THE APPLICANT: Self-represented

FOR THE RESPONDENT: Self-represented

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Norman & Kingston

Order

1. The alleged contravention of paragraph 4 of the Order made 26 May 2017 by the Honourable Justice Forrest particularised in paragraph 11 of the Application – Contravention filed 10 January 2018 is dismissed (count 1).

2. The alleged contravention of paragraph 5 of the Order made 26 May 2017 by the Honourable Justice Forrest particularised in paragraph 13 of the Application – Contravention filed 10 January 2018 is dismissed (count 2).

3. The alleged contravention of paragraph 6 of the Order made 26 May 2017 by the Honourable Justice Forrest particularised in paragraph 15 of the Application – Contravention filed 10 January 2018 is dismissed (count 3).

4. The alleged contravention of paragraph 15 of the Order made 12 December 2014 by his Honour Judge Howard particularised in paragraph 17 of the Application – Contravention filed 10 January 2018 is dismissed (count 4).

5. The alleged contravention of paragraph 8 of the Order made 26 May 2017 by the Honourable Justice Forrest particularised in paragraph 19 of the Application – Contravention filed 10 January 2018 is dismissed (count 5).

6. The alleged contravention of paragraph 16 of the Order made 12 December 2014 by his Honour Judge Howard particularised in paragraph 21 of the Application – Contravention filed 10 January 2018 is dismissed (count 6).

7. The alleged contravention of paragraph 16 of the Order made 12 December 2014 by his Honour Judge Howard particularised in paragraph 23 of the Application – Contravention filed 10 January 2018 is dismissed (count 7).

8. The alleged contravention of paragraph 27b of the Order made 12 December 2014 by his Honour Judge Howard particularised in paragraph 25 of the Application – Contravention filed 10 January 2018 is dismissed (count 8).

9. The alleged contravention of paragraph 21 of the Order made 12 December 2018 by the Honourable Justice Hogan particularised in paragraph 7 (as amended) of the Application – Contravention filed 26 March 2019 is dismissed (count 10).

The court having made the following finding

That the respondent contravened without reasonable excuse paragraph 23 of the Order made 12 December 2014 by his Honour Judge Howard during the period 15 April 2016 to 7 January 2018 by failing to do all things necessary, including signing any applications, to enable the children X born … 2006 and Y born … 2009 to obtain Australian passports (count 9).

It is further ordered

1. No sanction is imposed for the contravention without reasonable excuse of paragraph 23 of the Order made 12 December 2014 by his Honour Judge Howard during the period 15 April 2016 to 7 January 2018 by failing to do all things necessary, including signing any applications, to enable the children X born … 2006 and Y born … 2009 to obtain Australian passports.

2. The applicant pay the costs of the independent children’s lawyer in the sum of $1,528 within 30 days.

3. Paragraph 21 of the Order made by this Honourable Court on 12 December 2018 is discharged.

4. Pursuant to s 11 of the Australian Passports Act 2005 (Cth) this Order permits the children X born … 2006 and Y born … 2009 to have an Australian travel document as that term is defined by the said Act.

5. The applicant is required to show cause why a vexatious proceeding order should not be made against her pursuant to s 102QB of the Family Law Act 1975 (Cth) and for this purpose the matter be listed before the Honourable Justice Carew for submissions on 10 June 2019 at 10.00am. The respondent and independent children’s lawyer are not required to appear.

6. All outstanding applications are otherwise dismissed.

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 Darley & Darley 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 BRISBANE

FILE NUMBER: BRC 2317 of 2013

Ms Darley

Applicant

And

Mr Darley

Respondent

REASONS FOR JUDGMENT

1. I have before me two ‘Applications – Contravention’ filed 10 January 2018 and 26 March 2019 respectively and an Application in a Case filed 5 February 2019 (amended 29 March 2019). The applicant in all three applications is Ms Darley and the respondent is her former husband, Mr Darley. Both parties represented themselves but assistance was afforded by the Independent Children’s Lawyer (“ICL”).

2. The Application – Contravention filed 10 January 2018 contains 11 separate counts of alleged contravention. The first two counts have already been dealt with by another judge and dismissed.[1]

   [1] See paragraphs 48 and 49 of the Order made 12 December 2018 per Hogan J.

3. The remaining nine counts contained in that Application commence on page 4 of the Application[2] and I dismissed counts 1, 4, 6, and 7 because they failed to establish a prima facie case by admissible evidence, and reasons were given.

   [2] See exhibit 2.

4. The Application – Contravention filed 26 March 2019 contains one count of alleged contravention.

5. The Application in a Case filed 5 February 2019 (amended 29 March 2019) seeks an order dispensing with the respondent’s signature on travel documents for the parties’ children.

Determining an application - contravention that affects children

1. Before turning to consider the remaining counts, I note that an alleged contravention of an order that affects children is governed by Part VII Division 13A of the Family Law Act 1975 (Cth) (“the Act”). There are three distinct questions to consider in determining such an application:

   a)Has an order been contravened within the meaning of s 70NAC;

   b)If so, does the respondent have a reasonable excuse within the meaning of s 70NAE; and

   c)What sanction or other order should be made, if any (Subdivisions B, C, D, E or F).

2. An order is contravened if the person bound by the order has intentionally failed to comply with the order or has made no reasonable attempt to comply with the order (s 70NAC).

3. The onus of proof rests upon the applicant to establish that the respondent has contravened the order on the civil standard i.e. on the balance of probabilities (s 70NAF(1)) unless the sanction to be imposed is of a specified type (s 70NAF(3)).

4. If it is found that the respondent has contravened the order then the respondent must establish that he had a reasonable excuse on the balance of probabilities (s 70NAE and s 70NAF(2)).

5. Pursuant to s 70NAF(3) if an order is to be made under subparagraphs 70NEB(1)(da) (fine for failure to enter into bond) or 70NECA(3)(a) (fine for failure to comply with a bond) or 70NFB(2)(a), (d) or (e) (community service order, fine, or imprisonment) or 70NFF(3)(a) (fine for failure to comply with community service order or bond) then the Court must be satisfied beyond reasonable doubt that the grounds for making the order exist.

6. Depending upon the findings made, the Court has a range of options in terms of possible sanctions or orders. The imposition of a sanction or the making of an order is discretionary.  

Determining an application for contravention of an order other than a parenting order

1. An alleged contravention that does not affect children is governed by Part XIIIA of the Act.

2. The meaning of contravening an order is the same as under Part VII (s 112AB) as is the onus and standard of proof (s 140 Evidence Act 1995 (Cth)).

3. Depending upon the findings made, the Court has a range of options in terms of possible sanctions or orders. The imposition of a sanction or the making of an order is discretionary.  

Remaining counts of alleged contravention

1. The remaining counts are as follows:

Count 2

1. Count 2 alleges that the respondent contravened paragraph 5 of the order made by the Honourable Justice Forrest on 26 May 2017 without reasonable excuse.

2. Paragraph 5 of the said order provides as follows:

   5.     That in addition to whatever evidence the Husband shall file as directed in the property adjustment proceedings currently listed for trial before Hogan J in October 2017, the Husband shall also file and serve an affidavit in which he includes a schedule of the items of personal property that he removes from the [C Town] property, the value attributed by All Asset Appraisals to that item in their original valuation, whether the item was included in that original valuation at all, whether he wants to retain the item of property as his sole property at the All Asset Appraisals original valuation and, if not, what he proposes happens with the item. That schedule shall also include any item that was included on the list of personal property originally valued by All Asset Appraisals that was not in the shed when he attended to remove the items as well as the value originally ascribed to it.

3. The particulars of the alleged contravention are that during the period 16 August 2017 to 7 January 2018 the respondent contravened the said order without reasonable excuse in that he failed “to file and serve an affidavit in which he includes a schedule of the items of personal property that he removed from the [C Town] property, whether the items were included in the original valuation of All Asset Appraisals”.

4. The respondent denies that he contravened the order.

5. The respondent was cross-examined about this alleged count and denied that he failed to file an affidavit as required. He contended that the applicant had cross-examined him about the contents of the affidavit at the trial before the Honourable Justice Hogan. This was not contradicted by the applicant. The respondent contended that he did not remove anything from the shed that was not in the All Asset Appraisals valuation and that the valuer was present when he removed certain items. He said that there was nothing of value left and he was not contradicted by the applicant other than by an allegation that he had disposed of the children’s books (which he denied). The respondent said that he returned to the property after the valuation had been completed but only to take rubbish to the dump.

6. I am not satisfied that the applicant has established on the balance of probabilities that the respondent contravened this order as particularised.

7. Count 2 will be dismissed.

Count 3

1. Count 3 alleges that the respondent contravened paragraph 6 of the order made by Forrest J on 26 May 2017 without reasonable excuse.

2. Paragraph 6 of the said order provides as follows:

   6.     That the Husband shall cause an affidavit of the employee or agent of [G Valuers] who attends with him when he attends to remove the items of personal property from the shed at the [C Town] property to be filed in these proceedings, in which the employee or agent confirms his or her observations of what the Husband removes from the property and how that relates to the list of personal property originally valued by [G Valuers] in this matter.

3. The particulars of the alleged contravention are that during the period 16 August 2017 to 7 January 2018 the respondent contravened the said order without reasonable excuse in that he failed “to cause the Valuer to lodge the Affidavit in accordance with this Order”.

4. The respondent denies that he contravened the order.

5. During cross-examination the respondent said that he had filed the affidavit of the valuer, which was provided to the applicant on the morning of the trial, and that the applicant cross-examined the valuer about it. The applicant concedes that an affidavit was filed and that she cross-examined the valuer at the trial.

6. In those circumstances, and in the absence of the affidavit in question, the applicant has failed to satisfy the onus of proof that the respondent contravened the order as particularised.

7. Count 3 will be dismissed.

Count 5

1. Count 5 alleges that the respondent contravened paragraph 8 of the order made by Forrest J on 26 May 2017 without reasonable excuse.

2. Paragraph 8 of the said order provides as follows:

   8.      That the Husband shall provide to at least one of the real estate agents with whom the [C Town] property is listed for sale all keys, gate openers and shed openers relating to the [C Town] property as are in his possession.

3. The particulars of the alleged contravention are that during the period 26 May 2017 to 7 January 2018 the respondent contravened the said order without reasonable excuse in that he “failed to do so” i.e. provide at least one of the real estate agents with keys and gate openers.

4. The respondent admits that he contravened the order but informed the Court that he has already been found to have contravened the order by Hogan J and no sanction was imposed. In any event the respondent says he had a reasonable excuse.

5. I note that on 13 October 2017 Hogan J found that the respondent had contravened a similar provision in an earlier order by failing to return keys and a gate opener to the applicant (i.e. not a real estate agent) but found he had a reasonable excuse for failing to return the keys but no reasonable excuse for failing to return the gate opener. No sanction was imposed.

6. During cross-examination the respondent said that he did not provide the keys and gate openers to the real estate agent for two reasons:

   a)The agent already had keys; and

   b)The property had a resident tenant who was co-operative in providing access.

7. The applicant relies on hearsay evidence from an agent who purportedly sent two emails, one on 20 July 2017 and one on 26 July 2017, saying that no keys or remotes were currently held. Quite apart from that evidence being inadmissible, the applicant has failed to establish that the respondent failed to provide the keys and remotes during the period alleged. In any event, I am satisfied that the respondent had a reasonable excuse for not doing so given the co-operation of a resident tenant.

8. Count 5 will be dismissed.

Count 8

1. Count 8 alleges that the respondent contravened paragraph 27b of the order made by his Honour Judge Howard on 12 December 2014 without reasonable excuse.

2. Paragraph 27b of the said order provides:

   27.    That should either parent choose to take the children overseas:

   (a)     …

   (b)     the other parent shall not unreasonably withhold their consent to such travel;

   (c)     …

3. The particulars of the alleged contravention are that during the period 15 April 2016 to 7 January 2018 the respondent “has refused to consent to overseas travel”.

4. The respondent denies he contravened the order but if he did he says he had a reasonable excuse.

5. The applicant sought the respondent’s consent to travel with the children overseas by an email dated 15 April 2016. Her proposed travel was to Country MM from approximately August 2016 until the beginning of October 2016. The respondent objected to the travel on the following grounds:[3]

   a)The proposed travel would require the children to be absent from school for a significant part of term 3;

   b)The applicant was a flight risk; and

   c)The applicant was in contravention of a parenting order in that she had stopped the children spending time with him.

   [3] As per his affidavit dated 23 May 2016 appearing at pages 234 to 237 of the applicant’s affidavit filed 17 October 2017 and referred to at paragraph 84 of the applicant’s affidavit filed 10 January 2018.

6. During cross-examination the respondent said that there were proceedings before Judge Howard at or around this time and that after the hearing he heard nothing further from the mother about the proposed travel. He also contended that he had proposed during that hearing that the mother travel over the Christmas holidays but she refused. The mother denies this. The respondent said during cross-examination that the proposed travel impinged on the time he was supposed to spend with the children and no make-up time was offered by the applicant.

7. Other than the applicant stating that the respondent’s affidavit referred to above was “perjured” she did not take issue with the matters raised therein. The matters raised by the respondent appear to be issues of substance. It was not unreasonable, in the circumstances, to refuse the applicant’s request to travel with the children given that the proposed travel required the children to miss a number of weeks of school and the time proposed encroached on the time the children would otherwise have spent with the respondent.

8. The applicant has failed to establish the contravention as particularised by her and in any event has failed to establish that the respondent’s refusal to agree to the overseas travel was unreasonable.

9. Count 8 will be dismissed.

Count 9

1. Count 9 alleges that the respondent contravened paragraph 23 of the order made by his Honour Judge Howard on 12 December 2014 without reasonable excuse.

2. Paragraph 23 of the said order provides:

   23.    That the parents shall do all things necessary, including signing any applications, to enable the children to obtain Australian passports throughout their minority.

3. The particulars of the alleged contravention are that during the period 15 April 2016 to 7 January 2018 “the respondent has failed to sign the passport applications”.

4. The respondent admits that he contravened the said order but says he had a reasonable excuse. The evidence set out above (in relation to count 8) is also relevant to this count.

5. The requirement enabling the children to obtain Australian passports is a separate issue to whether or not they use the passports for travel. While it might be understandable that the respondent refused to co-operate at a time when he was not seeing his children that does not excuse his failure to comply with the order.

6. Count 9 is found to have been proved.

Count 10

1. Count 10 is found in the second Application – Contravention filed 26 March 2019 and alleges that the respondent contravened paragraph 21 of the order made by Hogan J on 12 December 2018 without reasonable excuse.

2. Paragraph 21 of the said order provides:

   21.    Both parents shall co-operate with each other regarding the children’s passports and both shall sign all documents necessary to ensure that the children have valid passports.

3. The particulars of the alleged contravention (as amended) are that during the period 30 December 2018 to 17 February 2019 the respondent “refused to sign and return the children’s passport applications”. It became apparent during the hearing that the respondent had in fact signed the passport applications and returned them to the applicant on or about 16 February 2019. The applicant tendered them.[4] The applicant emailed the respondent on 17 February 2019 complaining that it was predictable of him not to complete the forms properly.

   [4] See part of exhibit 1.

1. While it may well be that the respondent failed to complete the form as required e.g. his signature is not dated and the second name of the witness to his signature is not printed underneath her signature, the respondent had on three separate occasions (as admitted by the applicant) emailed the applicant enquiring about any deficiency as alleged by her and offering to “fix” it. The applicant did not make reference to the respondent’s three emails in her affidavit filed 26 March 2019 despite admitting they were received by her in February 2019.

2. It seems to me that the applicant has approached this issue with belligerence rather than cooperation. While she may well have reason to be frustrated with the respondent I accept his evidence that any deficiencies in completing the forms were not intentional. The applicant’s actions were self-defeating.

3. As it turns out, with the assistance of the ICL, the passport applications were completed and signed during the luncheon adjournment.

4. The applicant has failed to prove that the respondent contravened the order as particularised or at all.

5. Count 10 will be dismissed.  

Costs

1. Section 70NCB(2) of the Act requires that I consider making an order that the applicant pay some or all of the costs of another party or parties to the proceedings if the applicant has previously brought contravention proceedings, and on the most recent occasion where such proceedings have been brought, the applicant has failed to satisfy the Court that the respondent has contravened the order, or the Court did not make an order under ss 70NBA, 70NDB, 70NDC, 70NEB or 70NFB in relation to the contravention.

2. The circumstances of this case bring s 70NCB(2) into play because the applicant has previously brought an Application – Contravention against the respondent in relation to the primary order or another primary order and in the most recent application the applicant has failed to satisfy the Court that the respondent has contravened the order or the Court did not make an order under the subsections mentioned.

3. The father was self-represented and there is no evidence that he incurred any relevant costs.

4. If the ICL is a party for the purposes of s 70NCB(2) I must consider making a costs order.

5. Rule 6.01 of the Family Law Rules 2004 (Cth) provides:

   A party includes the following:

   (a)an applicant in a case;

   (b)an appellant in an appeal;

   (c)a respondent to an application or appeal;

   (d)an intervener in a case.

   (my emphasis)

6. While the ‘note’ to this rule states that an independent children’s lawyer is not a party to a case the rule itself does not so limit the term ‘party’. It might perhaps be so inferred when reference is made to r 8.02 which relevantly provides:

   (1)    …

   (2)    If the court makes an order for the appointment of an independent children’s lawyer:

   (a)…

   (b)it may order that the costs of the independent children’s lawyer be met by a party.

   (3)    A person appointed as an independent children’s lawyer:

   (a)…

   (b)must comply with these Rules and do anything required to be done by a party; and

   (c)may do anything permitted by these Rules to be done by a party.

   (4)     If an independent children’s lawyer is appointed, the parties must conduct the case as if the independent children’s lawyer were a party.

   (5)    …

7. Pursuant to the order made by Hogan J on 12 December 2018 the ICL is not discharged until 30 June 2019. Both Applications – Contravention included the name of the ICL as required.

8. It seems to me that as the ICL is to be treated as a party I am required to consider whether or not to make a costs order in his favour.

9. The ICL informed the Court that he did not have instructions to seek a costs order but that does not relieve me of the obligation to comply with s 70NCB(2) nor preclude an order being made.

10. The costs associated with his appearance are $1,518.

11. The applicant was found by Hogan J in her Honour’s judgment dated 18 December 2018 to have assets (not including superannuation) of $146,750 (including bank accounts totalling $137,400) and her Honour ordered that the applicant receive one half of the net proceeds of sale of the former matrimonial home, which were anticipated to be approximately $126,500.

12. The applicant opposed any order for costs and submitted that the ICL was not a necessary party to the contravention applications. While that may be so, the ICL is to be treated as a party as the order for his discharge has not come into effect. Ultimately, the ICL’s assistance was not only of benefit to the Court but, importantly, he assisted the applicant. Not only did he obtain passport applications over the luncheon adjournment, he assisted the applicant and respondent in completing them so that the mother could leave the Court with them.  

13. Having regard to the outcome of the Applications – Convention, the applicant’s financial circumstances, and the modest costs of the ICL, I consider this to be an appropriate case for an order that the applicant pay the ICL’s costs.

Should the father’s signature on travel documents be dispensed with?

1. The applicant’s Amended Application in a Case filed 29 March 2019 seeks the following order:

   (1) That the requirement of the father’s signature on any application for the issue of passports or on passport renewals for the children is dispensed with and that pursuant to s 11 of the Australian Passports Act 2005 (Cth) the Minister can issue Australian Passports in the names of [X] born … 2006 and [Y] born … 2009 (the “children”) without the necessity of obtaining the consent of the children’s father for that purpose and for any renewal of the passports.

   (2)    The requirements of the father’s signature on any application for the issue of visas for the children, is dispensed with.

2. The application is opposed by the respondent.

3. Rightly or wrongly the issue about the children’s passports has been a recurring issue, at least for the applicant. Although I have found her attitude to be self-defeating, I am nevertheless concerned to avoid, as far as possible, the parties returning to Court on this issue.

4. While there are now completed passport applications for the children that can be submitted by the applicant, there may be other travel documents required e.g. visas or future renewal of passports. Accordingly, I propose to make an order pursuant to s 11 of the Australian Passports Act 2005 (Cth) permitting the children to have an Australian travel document although the terms of the order as sought by the applicant do not reflect the requirements of s 11 of that Act.

Costs

1. In the event that I am wrong about the ICL being a party for the purposes of s 70NCB(2), I consider that the circumstances of this case justify a costs order being made against the applicant having regard to the relevant provisions of s 117(2) of the Act and in particular:

   a)The applicant’s financial circumstances;

   b)The applicant has been largely unsuccessful save for one contravention but there was simply no utility in bringing the application and no sanction was imposed;

   c)The applicant ignored three email offers made by the respondent to attend to any shortcomings in the returned passport applications;

   d)I have found that the errors in the passport applications did not occur intentionally on the part of the respondent;

   e)The applicant pressed ahead with alleged contraventions in relation to the non-production of keys and gate openers when the home had long since been sold and, in any event, failed to establish a prima facie case on these counts;

   f)The ICL was required to attend Court in relation to the Application in a Case if not the Applications – Contravention;

   g)The ICL provided assistance to the parties and to the Court.

2. While the applicant may argue that she has succeeded in so far as she has obtained an order pursuant to s 11 of the Australian Passports Act, I have made that order only so as to avoid the parties having to return to Court as a result of what I regard as the unreasonable position taken by the applicant e.g. refusing to permit the respondent from attending to any shortcomings in his completion of the passport applications. The possession of passports for the children does not relieve the applicant from her obligations under the order made 12 December 2018 or s 65Y of the Act.

3. I have disregarded (as required by s 117 (5)) the fact that the ICL is funded under a legal aid scheme.

Vexatious proceedings order

1. If satisfied of certain matters and upon affording a party an opportunity to be heard, the Court may, of its own motion, make a vexatious proceedings order prohibiting a party from instituting proceedings or proceedings of a particular type without obtaining the leave of the Court (ss 102QB, 102QD, 102QG).

2. Vexatious proceedings are defined to include the following:

   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.

3. Section 102QB of the Act provides:

   (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.

   Note: Examples of an order under paragraph (c) are an order directing that the person may only file documents by mail, an order to give security for costs and an order for costs.

   (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.

1. The applicant in these proceedings has brought three applications against the respondent seeking that he be dealt with for 67 separate counts of contravention of orders. All bar two of the counts have been dismissed. No order or sanction was made by the Court on the occasion of the two counts proved. The court time taken to deal with the numerous alleged contraventions has been considerable. Many of the alleged contraventions appear to have been petty in the extreme or of no utility.

2. The applicant is entitled to be heard on this issue and, accordingly, I propose to list the matter before myself on 10 June 2019 to enable the applicant to make submissions as to why a vexatious proceeding order should not be made against her prohibiting her from filing any ‘Application – Contravention’ without prior leave of the Court.  

I certify that the preceding eighty-five (85) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Carew delivered on 5 April 2019.

Associate: 

Date:  8 April 2019