Darley & Darley (No. 4)
[2019] FamCA 595
•23 August 2019
FAMILY COURT OF AUSTRALIA
| DARLEY & DARLEY (NO. 4) | [2019] FamCA 595 |
| FAMILY LAW – PRACTICE AND PROCEDURE – Vexatious Proceedings Order – Where it is found that the mother has frequently conducted vexatious proceedings – Where a vexatious proceedings order against the mother is made. |
| Family Law Act 1975 (Cth) s 102QB |
| Darley & Darley [2013] FCCA 2441 Darley & Darley [2014] FCCA 3179 Darley & Darley [2015] FCCA 317 Darley & Darley [2016] FamCAFC 10 Darley & Darley (No. 2) [2015] FCCA 2391 Darley & Darley (No. 3) [2015] FCCA 2968 Darley & Darley (No. 4) [2016] FCCA 2615 Darley & Darley [2017] FamCA 347 Darley & Darley [2018] FamCA 202 Darley & Darley (No. 2) [2017] FamCA 791 Darley & Darley (No. 2) [2018] FamCA 1086 Darley & Darley (No. 4) [2017] FamCA 850 Darley & Darley [2019] FamCA 348 Darley & Darley (No. 2) [2019] FamCA 206 Darley & Darley (No. 3) [2017] FamCA 827 Darley & Darley (No. 3) [2019] FamCA 459 Official Trustee in Bankruptcy v Gargan (No 2) [2009] FCA 398 Pencious & Searle (2017) FLC 93-805 Potier v Attorney-General [2015] 89 NSWLR 284 State Bank of New South Wales v Stenhose Ltd (1997) Aust Torts Reports 81-423 |
| APPLICANT MOTHER: | Ms Darley |
| RESPONDENT FATHER: | Mr Darley |
| INDEPENDENT CHILDREN’S LAWYER: | Mr Kingston |
| FILE NUMBER: | BRC | 2317 | of | 2013 |
| DATE DELIVERED: | 23 August 2019 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Carew J |
| HEARING DATE: | 10 June 2019 |
REPRESENTATION
| FOR THE APPLICANT MOTHER: | Self-Represented |
| FOR THE RESPONDENT FATHER: | Appearance excused |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Appearance excused |
Order
Pursuant to s 102QB(2) of the Family Law Act 1975 (Cth) (“the Act”) the applicant mother be prohibited from instituting proceedings against Mr Darley or the independent children’s lawyer, under this Act in a court having jurisdiction under this Act without first obtaining leave pursuant to s 102QE of the Act.
NOTATION
Section 102QE of the Act provides:
Application for leave to institute proceedings
This section applies to a person (the applicant ) who is:
(a) subject to a vexatious proceedings order prohibiting the person from instituting proceedings, or proceedings of a particular type, under this Act in a court having jurisdiction under this Act; or
(b) acting in concert with another person who is subject to an order mentioned in paragraph (a).
The applicant may apply to the court for leave to institute proceedings that are subject to the order.
The applicant must file an affidavit with the application that:
(a) lists all the occasions on which the applicant has applied for leave under this section; and
(b) lists all other proceedings the applicant has instituted in any Australian court or tribunal, including proceedings instituted before the commencement of this section; and
(c) discloses all relevant facts about the application, whether supporting or adverse to the application, that are known to the applicant.
The applicant must not serve a copy of the application or affidavit on a person unless an order is made under paragraph 102QG(1)(a). If the order is made, the applicant must serve the copy in accordance with the 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 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: BRC2317/2013
| Ms Darley |
Applicant mother
And
| Mr Darley |
Respondent father
And
| Independent Children’s Lawyer |
REASONS FOR JUDGMENT
A major problem in managing the workload of this Court is the number of litigants (mostly self-represented) who file application after application, often clogging the system. That is not to say that every such application is vexatious. Sometimes, serious matters are raised, but every application takes time to hear and then to deliver judgment.
Accordingly, when it comes to the Court’s attention that a litigant may be instituting or conducting vexatious proceedings, the Court has the power, if not obligation, to ask that party why there should not be some restriction placed upon them filing future applications without first obtaining the Court’s leave.
Ms Darley came to my attention on 2 April 2019 when I dealt with two Contravention Applications she had brought against her ex-husband, Mr Darley. Having reviewed the long history of their litigation and received submissions from Ms Darley, I have determined that there should be restrictions placed on Ms Darley filing future applications without leave i.e. I propose to make a ‘vexatious proceedings order’ against her.
My reasons for that decision are set out below but first, I set out some relevant background.
Background
The parties to these proceedings have been involved in litigation for over six years. The substantive proceedings, involving both parenting and property matters, were commenced in the Federal Circuit Court by Mr Darley on 27 March 2013. For ease of reference and to assist in the future anonymization of this matter I will refer to Ms Darley as “the mother” and Mr Darley as “the father” given that so much of the litigation has related to parenting matters.
Nearly five years ago, on the fifth day of what was to be a six day trial, the parties consented to a parenting order on 12 December 2014, finalising all parenting issues other than the children’s surname. The order provided for the parents to have equal shared parental responsibility for the children, and for the children live with the mother and spend time with the father from Friday at 3:00pm until Sunday at 3:00pm each alternate weekend and for time during the school holidays.
Despite the parenting order being made by consent, the mother filed a Notice of Appeal against the order on 14 January 2015.
The mother filed a second Notice of Appeal on that date seeking leave to appeal against an interim order made by his Honour Judge Howard on 15 December 2014 relating to a mechanism by which chattels might be distributed pending the finalisation of property proceedings.
Judge Howard delivered judgment in relation to the children’s surnames on 16 February 2015 and restrained the mother from referring to the children by any surname other than “Darley”.
The mother filed a third appeal on 18 March 2015, appealing against the order relating to the children’s surnames.
The mother’s three appeals were dismissed by the Full Court of the Family Court (Strickland, Murphy and Forrest JJ) on 4 February 2016.
Later in 2016, and as a result of the mother withholding the children for a period of three months, Judge Howard made an order on 29 August 2016 for the recommencement of the father’s time with the children. The mother argued that she had a reasonable excuse for contravening the orders, claiming the father had failed to administer certain medications to the children to assist with their allergies and asthma and for returning the children sunburnt. This was not the first time the mother had failed to comply with a parenting order. In December 2013, Judge Howard reinstated the father’s time with the children saying this:
5…. I do not consider that at this interim stage, that the mother had sufficient reason to hold the children over for the last three months. The children, it seems, did suffer from some, frankly, relatively minor childhood incidents, including the swing to the face and an injury to the mouth. I note also a possible complaint about a zap from a fence, but it’s unclear exactly what happened.
And in May 2016 Judge Howard had reminded the mother that she could not unilaterally suspend the father’s time with the children. As is apparent by the order made on 29 August 2016, the mother did not heed this warning.
On 13 October 2016, Judge Howard made an order for the matter to be transferred to this Court, noting:
The Court has concluded that the nature of the dispute is so intractable and that the number of days that would be require to finalise the parenting and property case is such that the Court does not have the resources to deal with the matter.
A further parenting trial was listed for a four day trial before the Honourable Justice Hogan from 17 to 20 October 2017. It was part heard at the conclusion of the final day and two further hearing days were allocated on 13 and 14 February 2018.
A further day was allocated on 23 May 2018 upon the mother’s Application in a Case filed 1 May 2018 to re-open her case.
Hogan J made a second ‘final’ parenting order on 12 December 2018, with reasons delivered on 18 December 2018. Her Honour ordered that the parents have equal shared parental responsibility for the children and that they live with the mother and spend alternate weekends and half school holidays with the father i.e. the same outcome as had been the subject of the consent order in December 2014. Her Honour also dealt with the property proceedings on a final basis and adjourned a Contravention Application filed by the mother on 10 January 2018 (other than dismissing two counts) to a date to be advised.
The matter then came before me on 2 April 2019 for hearing of the remaining counts in the Contravention Application filed by the mother on 10 January 2018, a further Contravention Application filed by her on 26 March 2019, and an Application in a Case filed by her on 5 February 2019 (amended 29 March 2019).
The mother and father were self-represented at the hearing but were assisted in the conduct of the case by the independent children’s lawyer (“ICL”).[1]
[1] To whom the Court expresses its gratitude.
The two Contravention Applications contained, in total, twelve separate counts of alleged contravention. Of those counts:
a)Two had already been dealt with by the Hogan J on 12 December 2018 and dismissed;
b)Four were dismissed by me on 2 April 2019[2] because they failed to establish a prima facie case by admissible evidence;
c)Five were dismissed by me on 5 April 2019 because the mother failed to establish a prima facie case that the father had contravened the order; and
d)The one remaining count was found by me on 5 April 2019 to be proved but I imposed no sanction against the father.
[2] The formal order dismissing these four counts issued on 5 April 2019.
The mother was ordered to pay the costs of the ICL fixed in the sum of $1,528 within 30 days.
On 3 May 2019, the mother filed a Notice of Appeal against the order made on 5 April 2019.
Included in the order made on 5 April 2019, the mother was ordered to appear before me on 10 June 2019 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) (“the Act”).
On 4 June 2019, the mother filed an Application in a Case seeking that the costs order of 5 April 2019 and the show cause hearing listed on 10 June 2019 be stayed pending the outcome of her appeal. Her application was dismissed.
Throughout the proceedings between these parties, the mother has filed five Contravention Applications alleging fifty-eight separate counts of contravention (only two of which were proven and no sanction was imposed for either). The mother has also filed ten Applications in a Case, which have been overwhelmingly unsuccessful. Of the six appeals instituted by the mother, three have been heard and comprehensively dismissed. One appeal was deemed abandoned when the mother failed to comply with directions. The remaining two appeals are yet to be heard. Sixteen judgments have been delivered. The mother has filed fifty affidavits, many of which are repetitive, verbose, and irrelevant. Many of the affidavits are lengthy, the longest comprising 641 pages.
In this matter there have been seventeen directions hearings, four case management hearings, eleven duty list hearings, fifteen days of trial and the hearing of three appeals. Of course, not all of this attention relates solely to proceedings instituted or conducted by the mother but it does demonstrate the overrepresentation of this matter in the courts; an overwhelming proportion of which relates to applications instituted by the mother.
I turn now to consider what principles apply to the making of a vexatious proceedings order.
When can a ‘vexatious proceedings order’ be made?
The statutory provisions
The statutory basis for making a ‘vexatious proceedings order’ is set out in Part XIB of the Act and can be made on the Court’s own initiative (s 102QB(3)).
‘Vexatious proceedings’ include:
(a)proceedings that are an abuse of the process of a court or tribunal; and
(a)proceedings instituted in a court or tribunal to harass or annoy, to cause delay or detriment, or for another wrongful purpose; and
(b)proceedings instituted or pursued in a court or tribunal without reasonable ground; and
(c)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.
(s 102Q(1))
The word ‘proceedings’ is defined in s 4 of the Act:
Proceedings means a proceeding in a court, whether between parties or not, and includes cross proceedings or an incidental proceeding in the course of or in connexion with a proceeding.
Relevantly, before making a ‘vexatious proceedings order’ the Court must be satisfied that the person has frequently instituted or conducted vexatious proceedings in Australian courts or tribunals (s 102QB(1)). When considering that matter the Court may have regard to the following:
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 (s 102QB(2)).
Where the Court is satisfied that the person has frequently instituted or conducted vexatious proceedings in Australian courts or tribunals the Court may make any or all of the following orders (s 102QB(2)):
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.
A person against whom a vexatious proceedings order may be made must be afforded an opportunity to be heard. (s102QB(4)).
A ‘vexatious proceeding order’ is a final order (s 102QB(5)).
Applicable legal principles
What constitutes an abuse of process?
In the often cited authority of State Bank of New South Wales v Stenhouse Ltd[3] Giles CJ (Supreme Court of NSW Commercial Division) provides a helpful review of the authorities relating to abuse of process. In summary, a proceeding may be an abuse of process where:
a)The proceedings are unreasonably oppressive and unfair to the other party;
b)The proceedings will bring the administration of justice into disrepute; and/or
c)It is sought to re-litigate something that has already been determined in previous proceedings.
[3] (1997) Aust Torts Reports 81-423 at 64,086 - 64,089.
What does ‘frequently’ mean?
The assessment of whether vexatious proceedings have been frequently instituted or conducted is not determined solely or even necessarily by the number of proceedings. As the Supreme Court of NSW in Potier v Attorney-General[4] concluded: ‘frequently’ has a relatively “low threshold”[5] and “both the quality of the vexatiousness of a proceeding, and the nature of the proceeding itself, inform the assessment of frequency.”[6]
[4] [2015] 89 NSWLR 284; cited with approval by the Full Court of the Family Court in Pencious & Searle supra; see also Viavattene v Attorney General (NSW) [2015] NSWCA 44.
[5]Potier & Attorney-General (supra) at [114].
[6] Ibid at [116].
What particular matters should be considered before making a vexatious proceedings order?
The Full Court of the Family Court in Pencious & Searle[7] cited with approval the decision of Perram J in the Federal Court of Australia in Official Trustee in Bankruptcy v Gargan (No 2)[8] in which his Honour identified some well-established principles in determining whether or not to make a ‘vexatious proceeding order’. Relevantly, they include:
[7] (2017) FLC 93-805 at [75].
[8] [2009] FCA 398 at [2]—[12]
First, the making of such an order is an extreme remedy depriving its object of recourse to the enforcement of the law which is every citizen’s ordinary right. It is, therefore, not lightly to be made.
Secondly, the purpose of the order is not to impose condign punishment for past litigious misdeeds; it serves instead to shield both the public, whose individual members might be molested by vexatious proceedings, and the Court itself, whose limited resources and needs must be carefully managed and protected from the expense, burden and inconvenience of baseless and repetitious suits.
Thirdly, as might naturally be expected, such a severe power is not enlivened by the mere single occurrence of a vexatious claim. To err is human and transient lapses of judgment, even serious ones, may be found in the most reasonable of places. Instead, the power to make the order is conditional upon the litigant having commenced not only a single vexatious proceeding but also upon having commenced similar such proceedings in this Court or in other Australian courts.
Fourthly, the qualities of vexation…in the commencement by the litigant of proceedings which lack reasonable grounds...
Fifthly, whether a proceeding is instituted without reasonable grounds is a different question to, although not wholly disconnected from, the inquiry into a proceeding’s legal merits. The wheat, no doubt, must be separated from the chaff but in this area the question is whether what is before the Court contains any wheat at all. Although, often enough, no great guidance is obtained by exchanging one formula of words with another, it will be usually of some assistance, limited perhaps, to ask whether the issues brought to the Court for determination are manifestly hopeless or devoid of merit. It is, in that context, important to distinguish the difficult from the ridiculous and the unlikely from the hopeless.
Sixthly, although the ways in which unreasonable grounds may manifest themselves are myriad, one form often to be found in the baggage of the vexatious is a failure, often a refusal, to understand the principles of finality of litigation which rescue court and litigant alike from a Samsara of past forensic encounters.
Seventhly, [‘frequently’ institutes or conducts vexatious proceedings].[9]
Eighthly, each of these notions — the want of reasonable grounds, … [and the frequent] institution — are to be gauged objectively. But this does not mean that a litigant’s own protestation as to his or her own mental state is irrelevant; frequently enough, the vexatious are betrayed out of their own mouths. Rather, the need for objective determination protects courts from the vexatious litigant who is genuinely, but misguidedly, persuaded as to the correctness of his or her own conduct.
Ninthly, the power to make the order arises when proceedings commenced in the way described are found to exist. But the notion of a proceeding is a broad one including a substantive proceeding directed at the attainment of final relief and collateral applications within such a proceeding; further, it extends outside the proceeding itself and embraces appeals therefrom and applications which, whilst not made in the proceeding, are properly to be seen as collateral thereto — so much flows from the definition of proceeding in s 4 of the Federal Court of Australia Act 1976 (Cth).
Tenthly, other proceedings commenced before bodies which are not courts, such as the Administrative Appeals Tribunal, are not directly pertinent to the existence of the power but may nevertheless throw light on the vexatious nature of proceedings before the Court; so too, the existence of a body of such administrative litigation may have relevance to the question of whether the Court’s power to make the order, once enlivened, should be exercised.
Finally, once it is concluded that the Court’s power to prevent a litigant from commencing or pursuing proceedings has been enlivened, the considerations germane to the exercise of that power are unconfined. However, the factors which will be relevant are informed by the protective purpose which the order serves. Where a litigant displays insight into their previous litigious history this will, no doubt, be relevant for it will suggest — although not determine — a diminution in the risk posed to the public. On the other hand, the manner in which a litigant conducts herself in her affairs generally is also capable of throwing light on whether the commencement of further vexatious proceedings is likely. Those general affairs include the litigant’s defence to the proceedings by which the order restraining him is sought. Because of the protective nature of the jurisdiction it is also relevant to know the extent of the damage and inconvenience the litigant’s forays into the courts have caused, pecuniary or otherwise.
[9] I have replaced the reference - ‘habitual and persistent’ with ‘frequently’ to reflect the term used in the Family Law Act and the amended Supreme Court Act NSW which “plainly lowered the threshold condition” – per Leeming JA in Potier v Attorney General (NSW).
proceedings instituted or conducted by the mother
In order to determine whether the mother has frequently instituted or conducted vexatious proceedings it is necessary to review those proceedings.
Contravention Applications
The mother has filed the following Contravention Applications since 2013:
a)Contravention Application filed 11 December 2013 in the Federal Circuit Court (alleging twelve contraventions);
b)Contravention Application filed 5 May 2016 in the Federal Circuit Court (alleging twenty-six contraventions);
c)Contravention Application filed 12 October 2017 filed in this Court (alleging eight contraventions);
d)Contravention Application filed 10 January 2018 in this Court (alleging eleven contraventions); and
e)Contravention Application filed 26 March 2019 in this Court (alleging one contravention).
Contravention Application Filed 11 December 2013
The Contravention Application filed on 11 December 2013 alleged that the father had, on twelve occasions, contravened three separate orders, namely orders made by Judge Howard on 13 May 2013, 3 June 2013 and 12 September 2013. The contraventions alleged by the mother were as follows:
a)That the father, between 13 May 2013 and 11 December 2013, contravened paragraph 1 of the order dated 13 May 2013 in that he, without reasonable excuse, failed to attend a mediation within three months of the date of the order (count 1);
b)That the father, between 3 June 2013 and 11 December 2013, contravened paragraph 1 of the order dated 3 June 2013 in that he, without reasonable excuse, failed to fully comply with his obligations in relation to the valuation of chattels removed from the matrimonial property at separation by him (count 2);
c)That the father, between 3 June 2013 and 11 December 2013, contravened paragraph 3 of the order dated 3 June 2013 in that he, without reasonable excuse, failed to fully comply with his obligations in relation to disclosure within 21 days (count 3);
d)That the father, between 8 June 2013 and 14 September 2013, contravened paragraph 4 of the order dated 3 June 2013 in that he, without reasonable excuse, had unsupervised time with the children in contravention of the order which required his time to be supervised (count 4);
e)That the father, between 8 June 2013 and 14 September 2013, contravened paragraph 4 of the order dated 3 June 2013 in that he, without reasonable excuse, had supervised time with the children at an address other than that stipulated in the order (count 5);
f)That the father, between 8 June 2013 and 14 September 2013, contravened paragraph 4 of the order dated 3 June 2013 in that he, without reasonable excuse, had unsupervised time with the children at an address not listed in the order (count 6);
g)That the father, between 14 September 2013 and 11 December 2013, contravened paragraph 5 of the order dated 3 June 2013 in that he and the supervisors, without reasonable excuse, have prevented the mother from delivering the children to the supervisors’ residence as required by the order (count 7);
h)That the father, between 3 June 2013 and 11 December 2013, contravened paragraph 10 of the order dated 3 June 2013 in that he, without reasonable excuse, failed to register at the Q Town Contact Centre within 14 days of the date of the order and that he has failed to register at all (count 8);
i)That the father, between 8 June 2013 and 11 December 2013, contravened notation A to the order dated 3 June 2013 in that the supervisor/s of his time with the children have failed, without reasonable excuse, to comply with their obligations to make sure the children remain safe whilst spending time with the father and if at any time the supervisor/s form the view that the children’s safety is or could be compromised then the supervisor/s shall terminate the father’s time with the children and immediately return the children to the mother and the father has placed the children at risk (count 9);
j)That the father, between 8 June 2013 and 11 December 2013, contravened notation B to the order dated 3 June 2013 in that the supervisor/s of his time with the children have, without reasonable excuse, not been present at all times during the contact sessions and the father has had unsupervised time with the children (count 10);
k)That the father, between 12 September 2013 and 11 December 2013, contravened paragraph 4 of the order dated 12 September 2013 in that he, without reasonable excuse, failed to return the keys and gate opener to the former matrimonial property to the mother within 14 days of the date of the order (count 11); and
l)That the father, between 12 September 2013 and 11 December 2013, contravened paragraph 6 of the order dated 12 September 2013 in that he, without reasonable excuse, failed to fully comply with his disclosure obligations within 21 days of the date of the order (count 12).
The entirety of this application was dismissed by consent on 17 January 2014.
Contravention Application Filed 5 May 2016
The Contravention Application filed by the mother on 5 May 2016 alleged that the father had, on twenty-six occasions, contravened three separate orders, namely orders made by Judge Howard on 3 June 2013, 12 September 2013 and 12 December 2014. The contraventions alleged by the mother were as follows:
a)That the father, on 11 February 2015, contravened paragraph 13 of the order dated 12 December 2014 in that he, without reasonable excuse, spoke to the mother other than by email by speaking to the mother about changing the pickup times for the children outside of a Federal Circuit Court room on the day of a court event (count 1);
b)That the father, on 26 August 2016 at 3.18pm, contravened paragraph 13 of the order dated 12 December 2014 in that he, without reasonable excuse, contacted the mother other than via email by sending the mother a text message asking her why she had not picked up the children from their school (count 2);
c)That the father, on 26 August 2016 at 3.23pm, contravened paragraph 13 of order dated 12 December 2014 in that he, without reasonable excuse, contacted the mother other than via email by contacting the mother by telephone to enquire as to why she had not picked up the children from their school (count 3);
d)That the father, between 4 and 6 February 2016, contravened paragraph 21 of the order dated 12 December 2014 in that he, without reasonable excuse, failed to inform the mother that the child, Y, had second degree burns from sunburn and heat illness after the father’s time with the children (count 4);
e)That the father, between 18 and 20 March 2016, contravened paragraph 14 of the order dated 12 December 2014 in that he, without reasonable excuse, returned the children to the mother extremely sunburnt (count 5);
f)That the father, between 4 and 6 March 2016, contravened paragraph 14 of the order dated 12 December 2014 in that he, without reasonable excuse, returned the children to the mother extremely sunburnt (count 6);
g)That the father, between 5 and 7 February 2016, contravened paragraph 14 of the order dated 12 December 2014 in that he, without reasonable excuse, returned the children to the mother extremely sunburnt (count 7);
h)That the father, between 30 October and 1 November 2015, contravened paragraph 14 of the order dated 12 December 2014 in that he, without reasonable excuse, returned the children to the mother extremely sunburnt (count 8);
i)That the father, between 13 to 15 November 2015, contravened paragraph 14 of the order dated 12 December 2014 in that he, without reasonable excuse, returned the children to the mother extremely sunburnt (count 9);
j)That the father, between 21 to 23 August 2015, contravened paragraph 14 of the order dated 12 December 2014, in that he, without reasonable excuse, returned the children to the mother extremely sunburnt (count 10);
k)That the father, between 12 December 2014 to 29 May 2015, contravened paragraph 15 of the order dated 12 December 2014, in that he, without reasonable excuse, failed to follow the recommendations of the children’s medical practitioners by failing to obtain and have a nebuliser available for the administration of the children’s asthma medication (count 11);
l)That the father, between 1 April 2015 and 12 June 2015, contravened paragraph 15 of the order dated 12 December 2014, by failing, without reasonable excuse, to follow the recommendations of the children’s Immunologist and Allergist Specialists by failing to obtain and administer the prescription medication to the child X (count 12);
m)That the father, between 21 August 2015 and 5 May 2016, contravened paragraph 15 of the order dated 12 December 2014, in that he, without reasonable excuse, failed to follow the recommendations of the children’s Immunologist and Allergist Specialist by, failing to obtain and administer the prescription medication to the child X (count 13);
n)That the father, between 4 September 2015 and 30 October 2015 contravened paragraph 15 of the order dated 12 December 2014, in that he, without reasonable excuse, failed to follow the recommendations of the children’s medical practitioners in that he failed to obtain and administer the prescription medication or equivalent and dressings to the children (count 14);
o)That the father, between 4 December and 6 December 2015, contravened paragraph 16 of the order dated 12 December 2014, in that he, without reasonable excuse, discussed adult matters in the presence of the children by discussing with the child, X’s prospective operation on her ankle (count 15);
p)That the father, between 20 April 2015 and 4 May 2016, contravened paragraph 16 of the order dated 12 December 2014, in that he, without reasonable excuse, discussed adult issues with the children by discussing the parenting arrangements and court proceedings with them (count 16);
q)That the father, on 28 July 2015, contravened paragraph 17 of the order dated 12 December 2014, in that he, without reasonable excuse, denigrated the mother via email by calling her ‘retarded’ (count 17);
r)That the father, on 3 August 2015, contravened paragraph 17 of the order dated 12 December 2014, in that he, without reasonable excuse, denigrated the mother via email by stating ‘but just remember this… you were the financial genius...’ (count 18);
s)That the father, 20 August 2015, contravened paragraph 17 of the order dated 12 December 2014, in that he, without reasonable excuse, denigrated the mother by commenting in an email to Westpac Bank ‘as my ex-wife has no intentions of rational thought’ (count 19);
t)That the father, on 20 August 2015, contravened paragraph 17 of the order dated 12 December 2014, in that he, without reasonable excuse, denigrated the mother via email by stating to her ‘you are delinquent in attitude and mind’(count 20);
u)That the father, on 30 October 2015, contravened paragraph 17 of the order dated 12 December 2014, in that he, without reasonable excuse, denigrated the mother via email by stating to her that ‘if [her] interests are that of the health of the children and I hope it is… then what you need to do is start communicating with me the way normal people do’ (count 21);
v)That the father, between 21 and 23 August 2015, contravened paragraph 17 of the order dated 12 December 2014, in that he, without reasonable excuse, denigrated the mother and the mother’s family by saying to the children “I’m as full as Ms P’s bike pants”. (count 22);
w)That the father, between 18 May 2015 and 7 June 2015, contravened paragraph 22 of the order dated 12 December 2014, in that he, without reasonable excuse, failed to keep the mother informed of his contact details, including his postal address (count 23);
x)That the father, between 12 September 2013 to 5 May 2016, contravened paragraph 4 of the order dated 12 September 2013, in that he, without reasonable excuse, failed to return the keys, remotes and gate opener to the former matrimonial property to the real estate agent within 14 days of the date of the order (count 24);
y)That the father, between 3 June 2013 and 5 May 2016, contravened paragraph 10 of the order dated 3 June 2013, in that he, without reasonable excuse, failed to register within 14 days or at all at the Q Town Contact Centre (count 25); and
z)That the father, between 17 June 2013 and 5 May 2016, contravened paragraph 2 of the order dated 3 June 2013, in that he, without reasonable excuse, failed to send a letter to the mother, within 14 days of the date of the order, which contained a list of documents or items, including the father’s trade certificates, which he requested to be returned by the mother to the father (count 26)
Of these alleged contraventions, seven were struck out (one by consent) by Hogan J at the hearing on 12 October 2017.[10] Of the remaining counts, eighteen were dismissed and one contravention was established (count 24) with no sanction imposed against the father.
[10] Reasons were delivered on 13 October 2017.
Contravention Application filed 12 October 2017
The Contravention Application filed by the mother on 12 October 2017 alleged that the father, on eight occasions, contravened two separate orders, namely an order of Judge Howard dated 12 December 2014 and an order of Justice Forrest dated 26 May 2017. The contraventions alleged by the mother were as follows:
a)That the father, on 1 May 2016, contravened paragraph 15 of the order dated 12 December 2014 in that he, without reasonable excuse, failed to follow recommendations of the children’s medical practitioners by failing to give the children their prescription medication (count 1);
b)That the father, between 15 and 17 April 2016, contravened paragraph 15 of the order dated 12 December 2014 in that he, without reasonable excuse, failed to follow recommendations of the children’s medical practitioners by giving the child Y a bath (as opposed to a shower) and failing to apply prescription ointment (count 2);
c)That the father, between 15 and 17 April 2016, contravened paragraph 16 of the order dated 12 December 2014 in that he, without reasonable excuse, discussed adult matters with the children by telling the children about the mother’s email regarding the children’s proposed overseas travel (count 3);
d)That the father, between 15 and 17 April 2016, contravened paragraph 16 of the Order dated 12 December 2014 in that he, without reasonable excuse, discussed adult matters with the children by telling them that he had been arrested by the police (count 4);
e)That the father, between 15 and 17 April 2016, contravened paragraph 17 of the order dated 12 December 2014 in that he, without reasonable excuse, denigrated the mother in the presence of the children by saying “You’re (sic) Mother’s a piece of shit” (count 5);
f)That the father, between 15 April and 2 May 2016, contravened paragraph 23 of the order dated 12 December 2014 in that he, without reasonable excuse, failed to do all things necessary to enable the children to obtain passports (count 6);
g)That the father, between 15 April and 2 May 2016, contravened paragraph 27(b) of the order dated 12 December 2014 in that he, without reasonable excuse, unreasonably withheld his consent to the children travelling overseas (count 7); and
h)That the father, between 26 May 2017 and 5 October 2017, contravened paragraph 8 of the order dated 26 May 2017 in that he, without reasonable excuse, failed to provide a real estate agent with keys, gate openers and shed openers for the former matrimonial property (count 8).
Each of these alleged contraventions were dismissed by consent on 18 October 2017 (per Hogan J).
Contravention Application filed 10 January 2018
The Contravention Application filed by the mother on 10 January 2018 alleged that the father had, on eleven occasions, contravened three separate orders, namely orders of Judge Howard dated 12 December 20 and 29 August 2016, and an order of Justice Forrest dated 26 May 2017. The contraventions alleged by the mother were as follows:
a)That the father, on 22 and 25 December 2017, contravened paragraph 5 of the order dated 29 August 2016 in that he, without reasonable excuse, returned the children to the mother sunburnt (count 1);
b)That the father, between 7 and 8 January 2018, contravened paragraph 4 of the order dated 29 August 2016 in that he, without reasonable excuse, failed to immediately notify the mother of the child/ren attending at a hospital (count 2);
c)That the father, between 16 August 2017 to 7 January 2018, contravened paragraph 4 of the order dated 26 May 2017 in that he, without reasonable excuse, disposed of personal property which he removed from the former matrimonial property (count 3);
d)That the father, between 16 August 2017 and 7 January 2018, contravened paragraph 5 of the order dated 26 May 2017 in that he, without reasonable excuse, failed to “file and serve an affidavit in which he includes a schedule of the items of personal property that he remove[d] from the C Town property, whether the items were included in the original valuation of All Assets Appraisals” (count 4);
e)That the father, between 16 August 2017 and 7 January 2018, contravened paragraph 6 of the order dated 26 May 2017 in that he, without reasonable excuse, failed to cause an employee or agent of All Asset Appraisals to lodge an affidavit confirming what items of personal property the father removed from the former matrimonial property and how that relates to the list of personal property originally valued (count 5);
f)That the father, between 15 and 17 April 2016, contravened paragraph 15 of the order dated 12 December 2014 in that he, without reasonable excuse, failed to follow recommendations of the children’s medical practitioners by giving the child Y a bath (as opposed to a shower) and failing to apply prescription ointment (count 6);
g)That the father, between 26 May 2017 and 7 January 2018, contravened paragraph 8 of the order dated 26 May 2017 in that he, without reasonable excuse, failed to provide a real estate agents with gate openers and shed openers for the former matrimonial property (count 7);
h)That the father, between 15 and 17 April 2016, contravened paragraph 16 of the order dated 12 December 2014 in that he, without reasonable excuse, discussed adult matters with the children by telling them that he had been arrested (count 8);
i)That the father, between 15 and 17 April 2016 contravened paragraph 16 of the order dated 12 December 2014 in that he, without reasonable excuse, discussed adult matters with the children by telling the children about the mother’s email regarding the children’s proposed overseas travel (count 9);
j)That the father, between 15 April 2016 and 7 January 2018, contravened paragraph 27(b) of the order dated 12 December 2014 in that he, without reasonable excuse, unreasonably withheld his consent to the children travelling overseas (count 10); and
k)That the father, between 15 April 2016 and 7 January 2018, contravened paragraph 23 of the order dated 12 December 2014 in that he, without reasonable excuse, failed to sign passport applications for the children (count 11).
Of these alleged contraventions, two (counts 1 and 2) were dismissed by Hogan J on 12 December 2018, and the remaining nine were dealt with by me. I dismissed four of the counts (counts 3, 6, 8 and 9 as set out above) at the hearing on 2 April 2019.[11] Of the remaining counts, four were dismissed on 5 April 2019 (counts 4, 5, 7 and 10)[12] and count (count 11[13]) was found to be proved, but I imposed no sanction against the father.
[11]Order made 5 April 2019 and renumbering of the original Contravention Application refers to the dismissed counts being 1, 4, 6 and 7.
[12]The order made 5 April 2019 refers to the renumbering of the original Contravention Application and refers to the dismissed counts being 2, 3, 5 and 8.
[13]The order made 5 April 2019 refers to the renumbering of the original Contravention Application and refers to the proven count being 9.
Contravention Application filed 26 March 2019
The Contravention Application filed by the mother on 26 March 2019 alleged that the father, between 30 December 2018 and 17 February 2019, contravened paragraph 21 of the order dated 12 December 2018 in that he, without reasonable excuse, “refused to correctly sign and return the children’s passport applications”.
This application was dismissed on 5 April 2019.[14]
[14]Referred to as count 10 in the order.
Applications in a Case
The mother has filed ten Applications in a Case throughout the proceedings. Many of the applications sought numerous orders, which I summarise below.
Application in a Case filed 29 November 2013
The Application in a Case filed by the mother on 29 November 2013 sought:
a)An urgent hearing;
b)That the appointed valuer be directed to review the valuation they had prepared at no extra cost to the parties;
c)That paragraphs 4, 5 and 9 of the order made on 3 June 2013 be set aside;
d)Various interim orders identified at paragraphs 1 – 13 and 24, 26 and 27 of the application related to, among other things, the father’s time being supervised at a contact centre and other interim property orders.
Relevantly, paragraphs 4, 5 and 9 of the order made on 3 June 2013 by Judge Howard provided that:
4. That the children X (sic) born … 2003[15]and Y (sic) born … 2009 (“the children”) spend time with the father every Saturday, commencing on 8 June 2013, from 9:00am to 4:00pm with that time to be supervised by Ms DD and/or Mr DD at their residence at B Street C Town.
5. That the mother deliver the children at Ms DD and Mr DD’s residence at 8:45am and collect the children at 4:15pm, with the father to arrive at the residence at 9:00am and leave the residence at 4:00pm…
…
9. That the children spend time with the father on Saturday 22 June 2013 and the mother travel to Sydney with the children from Sunday 23 June 2013 until the end of the June/July school holidays, with the father’s time with the children to resume on Saturday 13 July 2013 and continue each week thereafter.
[15]The child’s correct date of birth is … 2006
The mother’s submission that the father’s time be supervised at a contact centre (and not by Ms DD and/or Mr DD) had previously been rejected by Judge Howard on 3 June 2013 and was again rejected by his Honour on 10 December 2013, at which time his Honour made an order providing that the father spend unsupervised time with the children. His Honour, in delivering his reasons for that order, noted that the mother had withheld the children for three months on what he considered to be insufficient grounds.[16]
[16]Darley & Darley [2013] FCCA 2441 at [5]
Although no formal order appears to have issued dismissing the balance of the mother’s application, the court record indicates that the application was finalised i.e. it was unsuccessful.
Application in a Case filed 24 January 2015
The mother filed an Application in a Case on 24 January 2015, seeking a stay of the orders made on 12 December 2014 (final parenting order made by consent) and 15 December 2014 (relating to chattels) pending the outcome of her first two appeals. The application came before the court on a number of occasions.
Although no formal order appears to have issued dismissing the mother’s application, the court record indicates that the application was finalised i.e. it was unsuccessful.
Application in a Case filed 30 March 2015
The mother filed an Application in a Case on 30 March 2015 seeking the following orders:
a)That the Independent Children's Lawyer be removed for bias and for all the reasons raised in points 150-171 and the documents contained in Annexure D29 of my affidavit filed 3 December 2014 and in Part E Grounds of Appeal of the Notice of Appeal filed 9 January 2015 and in these supporting affidavits.
b)That the Respondent, Mr Darley, be referred to law enforcement officers to carry out an investigation in relation to perjury.
c)That the Judge be removed for bias and for all the reasons referred to in my Notices of Appeal and the supporting affidavits.
The application was adjourned until a date after the finalisation of the mother’s appeals.
The orders sought in the application were, at least in part, already the subject of the mother’s appeals. Her appeals were subsequently dismissed. Although no formal order appears to have issued dismissing the mother’s application, the court record indicates that the application was finalised i.e. it was unsuccessful.
Application in a Case filed 10 April 2016
The mother filed an Application in a Case on 10 April 2016 seeking:
a)That the father’s Application in a Case filed 3 August 2015 be dismissed;
b)That an order be made that the father have no holiday time and any existing order providing the father with holiday time be dismissed;
c)That the existing parenting order (the 2014 parenting consent order) be varied so that the father spend time with the children for two hours, four times a year, supervised at a contact centre;
d)That if one child refuses to attend the contact centre for the father’s time then the children are to be immediately returned to the mother and no makeup time will be granted;
e)That the mother have sole parental responsibility; and
f)Various restraints and injunctions against the father.
This application was dismissed.
The mother had previously been unsuccessful in seeking to have the father’s time with the children supervised at a contact centre (on 3 June 2013 and 10 December 2013 and had consented to a final order on 12 December 2014 that he have unsupervised time).
Application in a Case filed 12 May 2016
An Application in a Case was filed by the mother on 12 May 2016 (amended 12 May 2016 shortly after filing) seeking variation of the 2014 parenting consent order to afford sole parental responsibility to the mother and to permit the mother to travel with the children and obtain travel documents for them without the father’s consent.
This application was dismissed by consent by Hogan J on 18 October 2017.
Application in a Case filed 22 July 2017
The mother filed an Application in a Case on 22 July 2017 (amended on 7 August 2017) seeking that the father’s time with the children pursuant to the interim order made by Judge Howard on 29 August 2016 be suspended during the September/October 2017 school holiday period so that the children could visit their maternal grandmother, who was unwell, and that the time for compliance with an order made by Registrar Coutts on 6 July 2017 relating to the filing of trial material be varied.
The application was successful to the extent that an order was made by Senior Registrar Spink on 4 September 2017 suspending the father’s time from 15 September 2017 until 3 October 2017 to enable the children to visit the maternal grandmother.
The balance of the application was adjourned and later dismissed by Hogan J on 29 September 2017.
Application in a Case filed 10 August 2017
A further Application in a Case was filed by the mother on 10 August 2017 (amended on 28 September 2017) and was also dealt with by Hogan J on 29 September 2017.
The Application sought the same orders in relation to the extension of time for compliance with trial directions as in the application filed 22 July 2017 (amended 7 August 2017).
It also sought additional orders that the Court appoint a person with expertise in family violence or abuse to prepare a report assessing the impact and effects of that abuse, or being exposed to that abuse, on the children and the parties, that the order made 22 September 2017 by Hogan J requiring the parties to attend upon the family report writer on 2 October 2017 be “removed”, and that the ICL be discharged.
Hogan J made an order on 29 September 2017 extending the mother’s time for compliance with the trial directions for filing material, and dismissed the balance of the Applications in a Case filed 22 July 2017 (amended 7 August 2017) and 10 August 2017 (amended 28 September 2017).
It is relevant to note that when the matter was before Hogan J on 22 September 2017, her Honour heard submissions from the mother as to why she opposed an order requiring the parties to attend upon a family consultant for the purpose of preparing a family report and rejected those submissions. The mother nevertheless amended her Application in a Case filed 10 August 2017 on 28 September 2017 to seek an order in those terms, notwithstanding that her submissions on the point had been rejected.
Application in a Case filed 1 May 2018
An Application in a Case was filed by the mother on 1 May 2018 seeking leave to re-open her case to adduce further evidence. Hogan J granted the application and allocated a further hearing date of 23 May 2018.
Application in a Case filed 5 February 2019 (amended 29 March 2019)
An Application in a Case filed by the mother on 5 February 2019 (amended 29 March 2019) seeking that the requirement of the father’s signature on an application for the issue of passports or passport renewals for the children be dispensed with.
While I made an order pursuant to section 11 of the Australian Passports Act 2005 (Cth) permitting the children to have an Australian travel document on 5 April 2019, I did so to avoid the prospect of similar applications being brought by the mother in the future. Relevantly, I made this finding against the mother:
57. 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.
And also:
76. 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.
77. 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.
Application in a Case filed 4 June 2019
The mother filed an Application in a Case on 4 June 2019 seeking:
a)A stay of the costs order made by me on 5 April 2019 pending the appeal against that order and the final order made by Hogan J on 12 December 2018; and
b)A stay of the show cause hearing to be heard on 10 June 2019 pending the outcome of the appeals.
The application was dismissed on 10 June 2019 in circumstances where the mother had not served her application; the time for payment of the costs order had already passed; there was no explanation for the delay in filing her application; there were no circumstances of hardship identified; and there was no utility in granting a stay of the show cause hearing.
Appeals
The mother has filed six appeals throughout the proceedings. They are as follows:
a)An appeal against the parenting consent order made by Judge Howard on 12 December 2014 (appeal 1);
b)An application for leave to appeal and, if granted, an appeal against an interlocutory order relating to chattels made by Judge Howard on 15 December 2014 (appeal 2);
c)An appeal against an order relating to the children’s surnames made by Judge Howard on 16 February 2015 (appeal 3);
d)An appeal against a further interim parenting order made by Judge Howard on 29 August 2016 (appeal 4);
e)An appeal against the parenting and property order made by Justice Hogan on 12 December 2018 (appeal 5); and
f)An appeal against my order dismissing the mother’s Contravention Applications filed on 10 January 2018 and 26 March 2019 respectively, ordering that the mother pay the independent children’s lawyers costs and against the show cause hearing (appeal 6).
The mother’s first three appeals were dismissed by the Full Court of the Family Court of Australia (Strickland, Murphy and Forrest JJ) on 4 February 2016. The Full Court found that the mother’s grounds of appeal were without foundation, misconceived, and entirely without merit. On one particular aspect of the mother’s appeal, namely, that the trial judge had “held a gun to her head”, the Full Court held:
58. In our view, none of the matters specifically referred to by the mother or anything emerging from our own reading of the record, provide a proper foundation for the mother’s assertion that the orders made by consent were as a result of undue pressure and influence by the trial judge. For the sake of completeness, we should also add that nothing we have heard or read suggests that the mother was subject to improper pressure from either the father himself or from the ICL or her counsel.
The mother’s fourth appeal was deemed to be abandoned pursuant to rule 22.21 of the Family Law Rules 2004 (Cth) when she failed to file an appeal book by 31 March 2017. The mother had appealed against Judge Howard’s order made on 29 August 2016 on a number of grounds, including grounds which were similar to those identified by the mother in her three appeals filed in 2015, such as:
13. The learned trial judge erred in law by having confirmation bias.
14. The learned trial judge erred in law by having apprehended bias such that a fair minded lay observer might reasonably apprehend that his Honour might not bring an impartial mind to the resolution of the questions he was required to decided (prejudgment and bias) and by not considering all the evidence and ignoring the evidence of family violence and neglect by the father…
…
18. That the learned trial judge erred or failed by making orders that the children spend unsupervised time with the father by: 1) (including but not limited to), making pre-emptive and premature intimations before evidence had been presented and concluded such that a fair minded lay observer might reasonably apprehend that his Honour might not bring an impartial mind to the resolution of the questions he was required to decide (prejudgment and bias); 2) not considering all the evidence; and 3) in doing so failed to properly and adequately consider and mitigate the known risk of harm through exposure to family violence and neglect by the father/husband….
…
21. That the learned trial judge erred by appointing an Independent Children’s Lawyer (“ICL”) to the matter when there is no requirement for an ICL to be involved in this matter.
The mother’s fifth and sixth appeals are currently pending and awaiting compliance with directions.
The mother’s submissions – why a vexatious proceedings order should not be made
The mother filed written submissions on 9 June 2019 and was afforded the opportunity to speak to those submissions on 10 June 2019. The written submissions identify numerous affidavits and other documents (although some of them are said to relate to her application for a stay). The documents listed are as follows:
a)Amended Notice of Appeal filed 24 May 2019;
b)Notice of Appeal filed 3 May 2019;
c)Application – Contravention filed 22 January 2015 by the father;
d)Affidavit of the father filed 22 January 2015;
e)Application – Contravention filed 28 April 2015 by the father;
f)Affidavit of the father filed 28 April 2015;
g)Application – Contravention filed 7 July 2017 by the father;
h)Affidavit of the father filed 7 July 2017;
i)Affidavit of the mother filed 8 April 2016;
j)Affidavit of the mother filed 22 July 2017;
k)Application – Contravention filed 5 May 2016 by the mother;
l)Affidavit of the mother filed 5 May 2016;
m)Affidavit of the mother filed 8 April 2016;
n)Affidavit of the mother filed 8 May 2017;
o)Application – Contravention filed 10 January 2018 by the mother
p)Affidavit of the mother filed 10 January 2018;
q)Application – Contravention filed 26 March 2019 by the mother;
r)Affidavit of the mother filed 26 March 2019;
s)Affidavit of Dr NN filed 25 August 2016;
t)Application in a Case filed 22 July 2017 by the mother;
u)Amended Application in a Case filed 7 August 2017 by the mother;
v)Affidavit of the mother filed 22 July 2017;
w)Affidavit of the father filed 26 September 2017;
x)Affidavit of Mr QQ filed 20 October 2017;
y)Response to Divorce Objection filed 16 May 2018;[17]
z)Affidavit of the mother filed 10 May 2018;
aa)Affidavit of the mother filed 11 October 2017;
bb)Application in a Case filed 5 February 2019 by the mother;
cc)Amended Application in a Case filed 29 March 2019 by the mother;
dd)Affidavit of the mother filed 5 February 2019;
ee)Affidavit of the mother filed 4 June 2019; and
ff)Reasons for judgment of the Honourable Justice Hogan delivered on 18 December 2018.
[17] The mother sought to rely upon this document but it was unable to be located in the Court electronic or physical file, nor could an Application for Divorce be located.
In addition to that material, the mother sought to rely upon all the affidavits referred to in those affidavits. The mother did not provide a list identifying the further affidavits but, doing the best I can, the further affidavits are as follows:
a)Affidavit of the mother filed 11 December 2013;
b)Affidavit of the mother filed 29 November 2013;
c)Affidavit of the mother filed 3 December 2014;
d)Affidavit of the mother filed 24 January 2015;
e)Affidavit of Dr BB filed 13 June 2014;
f)Affidavit of the mother filed 19 May 2017;
g)Affidavit of the mother filed 31 March 2015;
h)Affidavit of the mother filed 31 March 2015;
i)Affidavit of the mother filed 16 October 2017;
j)Affidavit of the mother filed 12 May 2016;
k)Affidavit of Ms RR filed 2 December 2014;
l)Affidavit of Mr SS filed 7 December 2014; and
m)Affidavit of Ms SS filed 26 November 2014.
At the show cause hearing on 10 June 2019, the mother was invited to identify within the vast material relied upon by her (some 1,652 pages), something which might assist her in resisting the making of a vexatious proceedings order. The mother declined to do so.
The material relied upon does not assist the mother. To the contrary, it serves as evidence of the mother’s overall conduct in filing and relying upon material that is largely irrelevant, repetitious, argumentative and inadmissible.
The mother declined the opportunity to speak to her written submissions.
It is difficult to determine which submissions relate to the mother’s application for a stay and which relate to the show cause application. The mother was unable to identify which of her written submissions related to the show cause hearing saying - “really when you look at it the stay is - and the vexatious litigant show cause hearing are intertwined”.
Unfortunately, the mother’s written submissions are almost entirely unhelpful and largely do not address the matter I am tasked to determine. A summary of them is set out below:
a)The father has committed perjury;
b)The father has perpetrated family violence against the mother;
c)The father has contravened the order made by Forrest J;
d)The father’s evidence is not credible;
e)The father filed applications alleging contraventions which were without foundation;
f)The father contested the divorce.
g)Pursuant to section 165A of the Evidence Act 1995 (Cth) the children’s evidence should be treated as credible and reliable;
h)Pursuant to s 69 of the Evidence Act 1995 (Cth) business records including doctors records, a notification to the Department of Child Safety and correspondence from real estate agents are exempt from the hearsay rule;
i)Pursuant to s 69ZV of the Family Law Act 1975 (Cth) comments the children have made to medical practitioners are relevant to a consideration of their welfare and as such, are not inadmissible. Further that permitting the admission of such evidence is in the best interests of the children and that the welfare of the child is likely to be served by the admission of this evidence;
j)The father could not have relied upon the defence of reasonable excuse in relation to count 7 of the application filed 10 January 2018, being a contravention of paragraph 8 of the order made by Justice Forrest, because that conflicts with the intention of his Honour’s order;
k)The father has filed vexatious ‘Applications – Contravention’ that are without foundation and that the mother has spent time, trouble, effort and expense to respond to those applications, yet no order directing him to show cause as to why a vexatious proceedings order should not be made against him has been made. Nor have all of his perjured statements been dealt with;
l)That the ICL has acted on the basis of his own opinions rather than on the evidence;
m)That the ICL has acted improperly by acting contrary to the best interests of the children by failing to subpoena the father’s medical records, which would have demonstrated that he had a diagnosable mental illness. The ICL did not assist the parties with respect to the issue of signing of the applications for the children’s passports;
n)The mother should not be required to pay the costs order made against her on 5 April 2019;
o)The father deliberately did not sign the passport applications so as to exert control over the mother;
p)The mother was permitted to bring the ‘Application – Contravention’ filed on 5 February 2019 (amended 26 March 2019) by paragraph 39 of the order made by Hogan J on 12 December 2018;
q)The Court erred in finding that the father did not intend to incorrectly sign the passport applications and that such a finding “defies logic and common sense”;
r)The parties cannot cooperate with each other;
s)“In assessing whether Court proceedings are vexatious the Court must look at the whole history of the matter, including the number, general character and the result of the proceedings and not viewing events in isolation. Many unrepresented litigants do have valid causes of action, but are simply not able to properly state them without adequate legal representation”;
t)“A conservative approach needs to be taken by the Court given the very serious infringement of human rights that long term preclusion of access to legal processes causes”;
u)“The National Family Violence Bench Book at 10.3.4 states: “Further underlining difficulty associated with identifying vexatious litigation where there is a history of violence, a victim of long-term violence may, with reasonable grounds, make multiple and frequent applications, for example to enforce parenting orders that have been repeatedly breached by the perpetrator. Where a party is also self-represented, a court may need to consider the party’s lack of knowledge and experience of legal concepts and processes as a legitimate contributing factor to their frequent engagement with the legal system.”
Only the last three points could be said to have some relevance to the vexatious proceedings order point. The balance address ongoing and repetitive grievances the mother has about various issues, some of which relate to matters that have already been determined in previous proceedings.
Has the mother frequently instituted or conducted vexatious proceedings?
In order to make a finding that the mother has frequently instituted or conducted vexatious proceedings it is not necessary to make a finding that each and every, or even most, of the proceedings identified in this judgment were vexatious. It is sufficient to find that there have been proceedings which fall into that category.
The particular proceedings identified in this judgment which I find to be vexatious include (although I do not intend the following list to be exhaustive or to necessarily exclude other proceedings identified in this judgment being vexatious),:
a)The mother’s appeal against the consent order made on 12 December 2014 was an abuse of process and instituted or pursued without reasonable ground because the mother’s various grounds of appeal were found to be without foundation, misconceived and entirely without merit;
b)The mother’s appeal against the consent order made on 12 December 2014 sought to bring the administration of justice into disrepute by claiming that the trial judge had coerced, hectored or badgered her into agreeing to the order and had, in her words, “held a gun to her head”, where the allegations were found to be entirely without foundation;
c)The mother’s application for leave to appeal against the interim order made in relation to chattels on 15 December 2014 was an abuse of process and instituted or pursued without reasonable ground because the Full Court found the grounds relied upon to be entirely without merit;
d)The mother’s appeal against the order made in relation to the children’s surname on 25 February 2016 was found to have been made without any reasonable ground. I further find that, objectively, the conduct of the appeal by the mother was done in a way so as to harass or annoy, cause delay or detriment, or achieve another wrongful purpose in that the grounds were lengthy and without merit e.g. the Full Court noted that while there were ostensibly four grounds of appeal, the first two grounds had fifteen and twenty-three sub-grounds respectively with many of the so called grounds not meeting that description at all. The mother’s attempt to particularise the asserted material errors in the judgment of the trial judge “revealed a lack of substance in the allegations”. The cost to the other party and to the public purse (the ICL is of course funded by the State) not to mention the time taken to hear the appeal (and the impact on other litigants) fall within the category identified above;
e)The mother’s fourth appeal which was deemed abandoned was an abuse of process in that it contained grounds of appeal in very similar terms to earlier appeals which had been unsuccessful;
f)The mother’s Contravention Applications filed 5 May 2016, 10 January 2018 and 26 March 2019 were instituted or pursued without reasonable ground in circumstances where all bar two counts were either struck out or dismissed, and the only two that were proved did not attract any sanction. Additionally, the Contravention Applications were objectively instituted and/or conducted in a way so as to harass or annoy, cause delay or detriment, or achieve an improper purpose, particulars of which include:
i)Alleging that the father contravened an order on several occasions that required him not “to denigrate the other parent, the other parent’s religion or the other parent’s family to or in the presence of the children”[18] (emphasis added) when the statements alleged were very clearly not made in the presence of the children e.g. comments made by the father to the mother in emails exchanged between them;[19]
ii)Alleging that the father had contravened an order which required the mother to deliver the children to the supervisors address because the supervisors of the father’s time with the children requested that the mother drop the children at the front gate to their property, rather than the front door, after the supervisors discovered that the mother had been recording their conversations. The mother subsequently relied in part on this alleged contravention to withhold the children from the father;[20]
iii)Alleging that the father had contravened an order by failing to file an affidavit, when the father had not only filed it, the mother had cross-examined him on that affidavit;[21]
iv)Pursuing an alleged contravention that the father had failed to provide a gate opener to a home that had been sold months before (this was initially alleged by the mother in the Contravention Application filed 12 October 2017 and dismissed by consent (per Hogan J), and then alleged again in the Contravention Application filed 10 January 2018 and pursued in the hearing on 2 April 2019 when the property had been sold in or about May 2018;
g)The mother’s application for a stay of the order made 5 April 2019 filed 4 June 2019 was an abuse of process and instituted or pursued without reasonable ground, and objectively instituted or conducted to harass or annoy, because there was no merit in the application, the material relied upon was ridiculously lengthy, and the mother failed to provide any helpful submissions or assistance to identify anything that might be relevant to her application;
h)The mother has repeatedly brought applications for the removal of the ICL without reasonable ground and/or the applications were objectively instituted to harass or annoy, or to cause delay, in that the applications had to be heard at a cost not only to the other party and the ICL, but also to other litigants who were deprived of judicial time.
[18] Order 12 December 2014 at [17].
[19] As per the Application – Contravention filed by the mother on 5 May 2016 - counts 17 to 21.
[20] Application – Contravention filed by the mother on 11 December 2013 - count 7
[21] Application – Contravention filed 10 January 2018 - count 4.
The mother’s overall conduct in the proceedings has been deplorable, particulars of which include the following:
a)The mother has pursued numerous applications for contravention of orders against the father over the most minor of alleged breaches while displaying significant indifference to orders which imposed obligations on her. For example:
(i)The mother failed to attend or facilitate the children attending the family report interviews on 2 October 2017;
(ii)The mother withheld the children from the father for three months in 2013 and for over three months from 12 May 2016 until further interim orders were made on 29 August 2016. The mother acted in this way despite comments made by Judge Howard to the mother on 24 May 2016 reminding her that she does not have the authority to suspend the father’s time with the children;
(iii)The mother changed the children’s residence without consulting or even informing the father; [22]
(iv)The mother changed the children’s school without consulting the father;
(v)The mother unilaterally rented out the former matrimonial property without consulting the father or giving him notice so as to provide him with an opportunity to remove his belongings;
(vi)The mother, in a proceeding before Forrest J on 22 May 2017, sought an order for the father to disclose certain tax returns all the while steadfastly objecting to complying with her own disclosure obligations with respect to disclosing certain bank statements requested by the father.
b)The mother has persistently filed voluminous and largely irrelevant material;
c)The mother has on a number of occasions consented to the dismissal of an application only to file a further application in substantially the same terms;
d)The mother has demonstrated a wilfulness in the conduct of her litigation by pursuing proceedings that were ridiculous and bound to fail;
e)The mother has persistently failed to identify or address the issues involved in the proceedings; and
f)The mother fails or refuses to understand the principles of finality of litigation.
[22]An order for equal shared parental responsibility with respect to the long term issues of the children was in place.
Accordingly, I find that the mother has frequently instituted or conducted vexatious proceedings.
Conclusion
A vexatious proceedings order, if made, represents a significant incursion on a litigant’s ability to commence proceedings as of right. Such an order will have an impact on all future proceedings sought to be instituted or conducted by a person, whether vexatious or not. It is not an order to be made lightly.
In this case, I have found that the mother has frequently instituted or conducted vexatious proceedings and her conduct causes me to find that there is a real risk of future vexatious proceedings being instituted by the mother if a vexatious proceedings order is not made against her. The mother has not demonstrated any insight into the nature or impact of her conduct.
Accordingly, I propose to make an order prohibiting the mother from instituting proceedings against the father and/or an ICL, under the Family Law Act1975 (Cth) in a court having jurisdiction under that Act.
A vexatious proceedings order does not preclude the mother from seeking leave to institute proceedings pursuant to s 102QE, but any such application will be considered without the other party being involved. The other party will only be involved if the Court considers there might be some merit or utility in the proposed application by the mother and, in those circumstances, the mother will be ordered to serve the proposed application on the other party/s so that they may be heard in the usual way.
I certify that the preceding ninety-six (96) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Carew delivered on 23 August 2019.
Associate:
Date: 23 August 2019
2
1