Darwin and Darwin
[2008] FamCA 588
•23 July 2008
FAMILY COURT OF AUSTRALIA
| DARWIN & DARWIN | [2008] FamCA 588 |
| FAMILY LAW – PRACTICE AND RPOCEDURE – Reopening of case – Whether previous application vexatious or withdrawn |
| APPLICANT: | MR DARWIN |
| RESPONDENT: | MS DARWIN |
| FILE NUMBER: | NCC | 2444 | of | 2007 |
| DATE DELIVERED: | 23 July 2008 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Newcastle |
| JUDGMENT OF: | JUSTICE MULLANE |
| HEARING DATE: | 4 July 2008 |
REPRESENTATION
| THE APPLICANT: | No appearance |
| SOLICITOR FOR THE RESPONDENT: | Ms Z. Kekeff, Kekeff & Associates |
| INDEPENDENT CHILDREN’S LAWYER: | Mr Rod Powe |
Orders
The mother has until 4pm on 13 August 2008 to make a written request to the Registry Manager to list her Amended Response of 3 December 2007 for a further 1 hour undefended hearing before Justice Cohen in respect of her application under Section 118 of the Family Law Act.
In default of any such written request in the time permitted, the mother’s Amended Response of 3 December 2007 will be deemed to be withdrawn and is by this order dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Darwin & Darwin is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| FAMILY COURT OF AUSTRALIA AT NEWCASTLE |
FILE NUMBER: NCC2444 of 2007.
| MR DARWIN |
Applicant
And
| MS DARWIN |
Respondent
REASONS FOR JUDGMENT
INTRODUCTION
This was listed before me as an undefended hearing of the mother’s Response seeking dismissal of the father’s application for parenting orders, including an order for him to spend time with the parties’ only child, aged 5.
It was also listed before me as an undefended hearing of the mother’s Response so far as it seeks Orders under Sec 118 of the Family Law Act for the father to be restrained for 5 years from filing any further parenting applications and thereafter from filing any such application except by permission of the court.
THE EVIDENCE
The evidence consisted of:
Transcript of Proceedings before Justice Cohen on 26 May 2008;
Court Orders Sheets of 26 May 2008;
Application of Father filed 1 June 2006;
Amended Application of Father filed 20 July 2006;
Amended Application of Father filed 22 January 2008;
Amended Response of Mother filed 3 December 2007;
Affidavit of Mother sworn 1 August 2006;
Affidavit of Mr F sworn 6 November 2006;
Affidavit of Mother sworn 8 November 2006;
Single Expert Report by Dr R;
Affidavit of Mother sworn 4 December 2007.
RELEVANT LAW
Although there other provisions that might have been relied upon, the mother specifically relies upon Section 118 of the Family Law Act which provides:
Frivolous or vexatious proceedings
(1) The court may, at any stage of proceedings under this Act, if it is satisfied that the proceedings are frivolous or vexatious:
(a) dismiss the proceedings;
(b) make such order as to costs as the court considers just; and
(c) if the court considers appropriate, on the application of a party to the proceedings--order that the person who instituted the proceedings shall not, without leave of a court having jurisdiction under this Act, institute proceedings under this Act of the kind or kinds specified in the order;
and an order made by a court under paragraph (c) has effect notwithstanding any other provision of this Act.
(2) A court may discharge or vary an order made by that court under paragraph (1)(c).
It is clear from the wording of paragraph 118(1)( c) that the power relied upon does not support the making of an order that would impose an unqualified prohibition on filing applications for 5 years. There would have to be a qualification to the effect that an application can be made where the Court grants permission.
It is also important to state that the power to make an order of the type sought under Section 118 can only be exercised when the Court has already dismissed, or simultaneously dismisses, proceedings as frivolous or vexatious (Blug v Poulous (1997) FLC92-778 at 84,603 and O’Sullivan (1991) FLC 92-216). That also precludes a Judge exercising the power after a different Judge has made the dismissal order.
THE LISTING OF THE MATTER AND ORDERS BY COHEN J OF 26 MAY 2008
The father did not appear before me and I was concerned to ascertain that he had proper notice of the listing.
A search of the Court file revealed that there had been no orders engrossed (including any notations) for the occasion on 26 May 2008 when the matter was listed before Justice Cohen and both parties and the independent lawyer for the child appeared.`
The Orders Sheet on the Court file included only the following Notations:
“1That the husband wishes to withdraw his Application for Final Orders filed on 1/6/06.
2That the mother wishes to continue her Amended Response to an Application seeking that an order be made under Section 118 of the FLA.”
There was no record of any order adjourning the proceedings or of any other order. The father’s Application filed 1 June 2006 had been superseded by his Amended Application filed 20 July 2006 and then by his Amended Application filed 22 January 2008. Enquiries of the Associate to Justice Cohen did not assist any further than the Notations on the Orders Sheet.
It appeared that when the Registry listed the matter before me a letter was sent to the parties and the independent lawyer for the child notifying them of the listing. The letter was sent to the father’s address for service. The letter was returned marked “Left Address”.
I requested a copy of the transcript of the proceedings before Justice Cohen to assist me to establish whether in fact an order had been made adjourning the proceedings.
At pages 25 and 26 of the transcript there is a record that Justice Cohen made the following orders:
1)An order for a psychiatrist Dr [R] “if he is prepared to act” to be instructed by the Independent Children’s Lawyer to provide an update report on the capacity of each party to parent [the child] and on any other matters that he sees fit relating to the orders for parenting which will best advance [the child’s] welfare, including … the psychiatric or psychological condition of each of the parties.
2)That the parties be responsible for 50 per cent each of the costs of Dr [R] examining them and providing a report.
3)The father’s Amended Application filed 22 January 2008 was dismissed
4)The mother’s Amended Response filed 3 December 2007 so far as it sought an Order under Section 118 was adjourned to a date to be fixed.
5)Mr Powe (the Independent Lawyer for the Child) and Ms [L] (the Family Consultant) were excused from further attendance.
None of these Orders was recorded on the Orders Sheet. No Orders were engrossed.
As Justice Cohen dismissed the father’s Amended Application filed 22 January, 2008, he would need to hear any application under Section 118 based upon the argument that the father’s application was dismissed as frivolous or vexatious.
“Frivolous” is defined by the Macquarie Dictionary as “of little or no weight, worth or importance”, “Not worthy of serious notice”, or “characterised by lack of seriousness or sense”.
The mother’s case is not that the father’s application is frivolous. From the evidence it appears she relies on the ground that it is “vexatious”.
“Vexatious” is defined by the Macquarie Dictionary as “something that vexes” and “vex” is defined as “to irritate, annoy, provoke, make angry”, “to torment”, “plague, worry”, and in the sense use of legal actions is defined as “instituted without sufficient grounds, and serving only to cause annoyance”.
It has been held to mean in relation to an interrogatory, “administered without reasonable grounds for the purpose of causing trouble or annoyance and includes an interrogatory administered for a purpose foreign to the proceedings, such as ‘fishing’” (per Woodward J, Federal Court of Australia, ASPAR Autobann Cooperative Society & Ors v Dovala Pty Ltd & Ors (1987) 74 ALR 500).
In Attorney General (NSW) v Wentworth (1988) 14 NSWLR, Roden J held that proceedings are vexatious if:
a)they are instituted with the intention of annoying or embarrassing the person against whom they are brought;
b)If they are brought for a collateral purpose and not the purpose of having the Court adjudicate on the issues to which they give rise; or
c)If irrespective of the motive of the litigant they are so obviously untenable or manifestly groundless as to be utterly hopeless.
ORDER SOUGHT BY THE FATHER
The father’s Amended Application filed on 22 January 2008 sought the following orders:
“1Residence
That the child […] Born […] August 2002 live with the mother. If mother is to move of any distance. She to be required to leave Child with Father in Newcastle if she is to move graeter 50km Radius from Newcastle Post office.
2Weekend Contact
That the father has contact with child as follows:
(a) Each second weekend from end of School Friday to Sunday evening 5.30pm. ([the child] given back to Mother at McDonalds […].)
OR
(b)Each second weekend from 5-7pm on Friday to 5-6pm Sunday.
OR
( c)Each second weekend from 5pm on Friday to 4-7pm Saturday.
OR
(d)Two Hours at Rainbows at Relationships Australia on weekend, if possible same time from previous visits.
OR
(e)Father to pick [the child] up from Rainbows within a system set by Rainbows.
OR
(f)
3Holiday contact
That the father has contact with child as follows;
(a) For the first half of each school vacation commencing in an odd numbered year and the second half of each school vacation commencing in an even numbered year.
OR
(b)For half of each school vacation, to be the second half unless the parties agree otherwise.
4Telephone contact.
That the father has contact with child by Telephone between 6pm and 7pm On none contact Saturday and/or Wednesdays.
5 Birthday Contact
That the father has contact with child for 6 hours on child’s birthday 1pm to 7pm.
6 Father’s Day Contact
That the father has contact with child for 5 hours on Father’s Day from 2pm to 7pm on none contact weekends.
7 Special Event
That the father has contact with child from 1pm to 7.30pm for 6.5 hours on Christmas Day and Easter.
8 Care of [the child] with Father
[The child] has her own bedroom, bed with her own bedding given to father and will be maitained by father, as well updated as required. Same with any extra clothing, shoes, toys and food while [the child] is in care of her Father.
[The child] will still do her ativities set by mother and approved by father swimming and or other sports ativities.
[The child] will then be able to see Grand Parents and also Aunty and Uncle and Cousin on Fathers side.
Other Ativities will also include Ten Pin Bowling, Ice Skating, Roller Skating, Moview and other Ativities suitable for [the child].
Father to also follow up with Uni-students or full time workers as people choosen to live at [father’s address] as was asked of Mother to [the child].”
A reading of the transcript does not reveal any finding by Justice Cohen that the father’s Application was in any way frivolous or vexatious. He does not state such as finding as the reason for dismissal of the proceedings. Several times the father said that he wished to withdraw his application and the following exchange occurs at pages 25-26 of the transcript:
“[THE FATHER]: At this point in time your Honour I pay enough, when I get back into full employment I pay more than ample child support for [the child], right, and to add any costs that are only really only going to produce what we already know, no. It’s being silly. I’m sorry, it’s - - -
HIS HONOUR: You think it’s silly, I don’t.
[THE FATHER]: Well, what I’m trying to say, your Honour, is I don’t want to continue on this case any further than we have to if we’re not going to obviously establish something that’s going to be good for [the child] at this point of time.
HIS HONOUR: It’s up to you.
[THE FATHER]: We’re making an argument to extend - - -
HIS HONOUR: If you’re suggesting to me that because of that you want to withdraw, tell me in a straight out way.
[THE FATHER]: I have been telling you in a straight way.
HIS HONOUR: You want to withdraw, do you?
[THE FATHER]: Yes please. And I’ve also made my evaluation of what I see of the situation as well.
HIS HONOUR: All right, well I’ve heard all that. So you want to withdraw, do you?
[THE FATHER]: Yes please.
HIS HONOUR: I will note that the husband wishes to discontinue these proceedings and I dismiss them.
[THE FATHER]: Thank you.”
It does not appear that there was any finding that the father’s Amended Application filed 22 January 2008 or any part of it was frivolous or vexatious. It appears that the reason that his application was dismissed was that it was withdrawn.
CONCLUSIONS
Accordingly, the finding is that the father’s Amended Application filed 22 January 2008 was dismissed on 26 May 2008 by Justice Cohen and therefore I do not have power under Section 118 to make an order of the type the mother seeks, as I did not dismiss the proceedings.
On the face of it, there does not appear to be a basis for Justice Cohen to make such an order either, but that is a matter for him to decide. I therefore propose to allow 21 days from publication of this Judgment for the mother to make a written request to the Registry Manager for her response to be listed before Justice Cohen. In default of such written request, the mother’s response would stand withdrawn and dismissed.
______________________
The Hon Justice G. Mullane
Date: 23 July 2008
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