Field and Mighell
[2016] FCCA 1818
•26 July 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| FIELD & MIGHELL | [2016] FCCA 1818 |
| Catchwords: FAMILY LAW – Applicant seeking further orders following conclusion of long-running proceedings in Mexico – whether court functus officio – whether applicant seeking to re-litigate matters previously determined by the court – whether application represents an abuse of process – whether either party should be declared a vexatious litigant – whether Anshun estoppel applies – consideration of s.17A of the Federal Circuit Court Act – application and response dismissed. |
| Legislation: Family Law Act 1975, s.79A Federal Circuit Court of Australia Act 1999, ss.17A, 88P, 88Q |
| Cases cited: Port of Melbourne Authority & Anshun Proprietary Limited (1981) 147 CLR 589 Attorney General v Wentworth (1988) 14 NSWLR 481 |
| Applicant: | MS FIELD |
| Respondent: | MR MIGHELL |
| File Number: | MLC 1145 of 2010 |
| Judgment of: | Judge Burchardt |
| Hearing date: | 8 June 2016 |
| Date of Last Submission: | 8 June 2016 |
| Delivered at: | Melbourne |
| Delivered on: | 26 July 2016 |
REPRESENTATION
| The Applicant: | In Person |
| The Respondent: | In Person |
ORDERS
All extant applications and responses be dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Field & Mighell is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLC 1145 of 2010
| MS FIELD |
Applicant
And
| MR MIGHELL |
Respondent
REASONS FOR JUDGMENT
Introduction
These parties have been litigating against one another in Mexico and in this country since 2003. Although they are long since divorced, there have been so many applications brought by them that it is easier to identify them as wife and husband respectively. The wife herself continues to use this descriptor in her affidavits.
The matter before the Court is the wife’s initiating application filed 3 July 2015 in which she seeks no less than 32 specific orders. The wife says that this application is brought pursuant to s.79A of the Family Law Act 1975 (“the Act”).
The husband’s response filed 1 September 2015 seeks that the application be dismissed and that the wife be declared a vexatious litigant (this being an order also sought by the wife in her own application against the husband).
For the reasons that follow, I am going to dismiss the application and the response.
A Very Brief Indication of the History of Litigation Between the Parties
It is not possible to understand this proceeding without some appropriate context. The parties commenced litigation in 2003 in Mexico when the husband applied for divorce, but, as I noted at paragraph 54 of my Judgment delivered 21 June 2011 “the parties rapidly got embroiled in what would in Australia be called child support proceedings”.
On 14 October 2013 on the first day of an appeal against orders I had earlier made, the husband informed the Full Court of the Family Court that the Mexican proceedings had finally ended “two months ago”, although I note that it was also asserted there had been several appeals from that conclusion which had been unsuccessful. On any view, however, the Mexican proceedings were certainly finally determined by October 2013.
Matters first commenced in this Court with the husband’s initiating application filed 30 August 2010. In the ultimate, I have given four sets of Reasons for Judgment, all of which should be read in conjunction with these Reasons. I will have to refer to these Reasons and the Judgment of the Full Court given on 25 February 2015 in disposing of the matters raised by the proceeding. Relevantly for these purposes, I made final orders in my third Judgment delivered on 31 August 2012. It was the orders then made that gave rise to the appeal to which I have referred. The appeal was entirely unsuccessful.
As earlier indicated, the wife filed her initiating application on 3 July 2015 and when the matter first became returnable before the Court on 28 September 2015, I made a number of observations to the parties, who are self-represented, in order that they be alerted to matters that concerned me about the nature of the proceeding.
I pointed out that this was an application to change, in effect, orders made as long ago as 2011. I observed that the first issue raised was whether I was functus officio. The second matter I directed the parties to consider was whether the application sought to retry issues I had already determined anyway, so that even if I was not functus officio I might be reluctant to reopen them. I gave as an example the endeavour to involve the husband’s mother as a party. The third matter to which I directed the parties’ attention was the Court’s capacity pursuant to s.17A of the Federal Circuit Court of Australia Act 1999 which empowers the Court to dismiss a proceeding where there are no reasonable prospects of success. I indicated that this was a power the Court can exercise of its own motion and that I was minded to exercise it. I told the parties to revisit and reread all of my rulings and the appeal decision in preparing themselves.
The Submissions Made at Court
Although it puts the cart before the horse, it is appropriate to start with the submissions the parties made at Court, as it informs consideration of the materials they had filed. It should be noted that as with every aspect of this case at every stage, producing a structured judgment is rendered difficult by the scattergun approach of the parties generally and more particularly so of the wife.
In oral submissions, the wife said she was seeking to vary the Court’s prior orders pursuant to s.79A(1)(b), (c) or (d) of the Family Law Act. It should be noted that the wife is studying law at the present time and is not by any means wholly uninformed as to legal matters.
The wife said that the husband wants the matter finalised by having it dealt with by the courts in Mexico. She said the main order she sought about the Mexican property was that this Court value her share of it and order the husband to pay her that sum in Australian dollars in Australia. The wife informed the Court that she wanted the husband to give her a power of attorney to sell the property properly and that she had filed new evidence about this. She complained that the husband had not complied with orders of the Court made on 21 June 2011 as to the sale of the property. She referred to a concession alleged to be made by the husband that the Mexican property was wholly hers. She said she will stay in Australia, but the husband resides both in Australia and Mexico. She said it would take 20 years for her to obtain possession of the Mexican property and that the husband is waiting for her to sue in Mexico. The original proceedings took nine years and the property is encumbered by the child support debt (referred to in earlier proceedings). She seeks that the original orders be set aside, that the Court here estimate the value of her share in Mexico and that the husband pay her that amount here in Australia.
The husband had prepared written submissions which were tendered and marked for identification as MFI-R1. The written submissions refer, inter alia, to res judicata and Anshun estoppel (Port of Melbourne Authority & Anshun Proprietary Limited (1981) 147 CLR 589).
The written submissions assert that the wife’s application is a complete waste of time and that she should be declared a vexatious litigant. They otherwise responded to the wife’s materials in some detail, but it is not necessary to paraphrase them further.
The husband submitted that the wife’s Australian citizenship was irrelevant. She had obtained a five per cent loading as to future needs. The split sought by the wife would affect the Court’s original determination of a property division of 65/35 and make it more like 50/50.
In response, the wife said she did not, in fact, seek that the Court order the husband to give her a power of attorney. She said this matter was already ordered. She said it was to the husband’s benefit the house be sold and the child support debt expunged. She said if this did not occur, the husband would have to pay her support until the day she died. She said she had agreed with what she called the husband’s “cease and desist” and confirmed that, in her view, the outcome she was suggesting was in the husband’s best interests.
It is fair to say that, from this paraphrase, it is clear that the wife’s application purports to be made pursuant to s.79A of the Act. It is equally clear that the husband is saying that it is impermissible for the matter to proceed, because it seeks to re-agitate matters already curially determined by my earlier judgments, and he relies further on the doctrine of Anshun estoppel.
The Parties’ Materials
The wife filed an affidavit contemporaneously with her initiating application. As with almost all documents she files, it is prolix. I note that the Mexican proceedings came to an end in August 2013. I further note that, at paragraph 19, the child support obligation amounts to $27,500 per year per child until each of them turn 25. This is, of course, inconsistent with the submission made at court by the wife that the husband might have to pay her support for the whole of her life.
The precise nature of the obligation arising in Mexico has never been made clear, and I have received more than one explanation from the wife as to what it is. It remains unclear.
I note the wife discussed her offer to take a power of attorney from the husband to sell the property and her assertion it would take 10 years to sell the property through curial proceedings in Mexico. The wife set out in considerable detail a number of expenditures she had made in relation to the upkeep of the Mexican property and sought recompense therefor.
She also went on to deal with the circumstances of the company I have referred to in earlier judgments as (omitted) and sought various remedies relating to that and to other domains possessed by the parties.
She further sought the joinder of the husband’s mother as a party to the proceedings, although I note that the matters to which reference is made at paragraph 102 of the affidavit, to the extent that they are comprehensible, would all appear to predate my original judgments and orders.
I note that paragraph 98, the wife deposed:
“Now that the Mexican proceedings are over and the situation is clearer, there is no reason not to continue with a complete property settlement exercise, pursuant to s79 of the Family Law Act [1975]. This exercise can be done taking into account the evidence gathered within the previous proceedings. I request leave of the court to start s79 Family Law Act proceedings should it be necessary.”
I further note annexure D to the affidavit, which appears to suggest that on 14 April 2015, the local council in Mexico was contemplating forfeiture proceedings to recover unpaid land tax and municipal service fees. Indeed, the wife had deposed that council proceedings would be likely to cause forfeiture, although it is not clear whether it is asserted that the relatively minor debts owing on council fees would lead to the forfeiture of the entirety of the property. As a matter of first principles, it would seem unlikely that that would be so, although there is plainly no evidence one way or the other.
Finally, I note that at paragraph 101, the wife sought that property formerly owned by the parties at Property B be transferred to her. It should be noted that the wife well knew from the earlier proceedings before me that this house was sold in 2012. At that time she sought to enjoin the husband from proceeding with the sale and failed.
The Husband’s Affidavit
The husband’s affidavit, filed 1 September 2015, essentially is a largely argumentative response to the wife’s materials asserting that she is wasting the court’s and the respondent’s time. I note that he refused to provide a further Financial Statement. He also referred to the wife seeking to re-litigate matters put against him. The only matters I should note for these purposes are the paragraph 11(b) where the husband deposed:
“There are many reasons, including the Mexican Court has a Caveat on the house and the only way for that to be removed is by the applicant requesting the Mexican court to remove it – The Applicant has not requested its removal.”
It is apparent that the parties have bickered over the possible sale of the property in Mexico at various times including, it should be noted, when the matter was before me originally. The husband annexed various emails to his affidavit showing endeavours to sell the property. They were all without prejudice but since the wife has also put in a large amount of what are clearly without prejudice offers and since both parties sought to rely upon them, I take it that they have waived privilege.
The Affidavits in Response
On 8 September 2015, the mother filed an affidavit responding to that of the husband. I note that in support of her application that the husband’s mother be joined, the wife deposed at paragraph 11.
“It should be clear that I appointed Ms S as a respondent because I am seeking orders against her estate, i.e. against her property and entitlements. And I am seeking such orders mainly because Mr Mighell’s estate is intermingled with Ms S’s.”
Although I have had regard to the matters raised in the affidavit, they do not in the context of this application take the matter further.
The Wife’s Affidavit Sworn 3 June 2016
This affidavit essentially puts in evidence the large number of emails to which I have referred between the parties and traverses the various offers made between the parties. It is clear from the materials exhibited that the husband has been prepared to offer the wife a power of attorney, which he clearly contemplates will have the effect of enabling the wife to sell the Mexican property fairly readily. But he seeks in exchange in effect a release from the child support debt in Mexico. The wife appears to profess at times an acceptance of this offer but unsurprisingly both sides are very cagey negotiators with one another and nothing has come to pass. They are both sufficiently conniving that it is understandable that they are wary of one another. In the light of my lengthy experience of them, I would have to say that I think that their reservations about one another are well-founded.
Against this factual background, it is now appropriate to address the particular claims made in the initiating application.
Final Orders Sought 1
In substance, notwithstanding how it is expressed, this is really an application to s.79A of the Act. As indicated, the wife presses her application under subsection 79A(1)(b), (c) or (d). These read relevantly:
“ (1) Where, on application by a person affected by an order made by a court under section 79 in property settlement proceedings, the court is satisfied that:
…(b) in the circumstances that have arisen since the order was made it is impracticable for the order to be carried out or impracticable for a part of the order to be carried out; or
(c) a person has defaulted in carrying out an obligation imposed on the person by the order and, in the circumstances that have arisen as a result of that default, it is just and equitable to vary the order or to set the order aside and make another order in substitution for the order; or
(d) in the circumstances that have arisen since the making of the order, being circumstances of an exceptional nature relating to the care, welfare and development of a child of the marriage, the child or, where the applicant has caring responsibility for the child (as defined in subsection (1AA)), the applicant, will suffer hardship if the court does not vary the order or set the order aside and make another order in substitution for the order;…
the court may, in its discretion, vary the order or set the order aside and, if it considers appropriate, make another order under section 79 in substitution for the order so set aside.”
It is immediately apparent that subsection 79A(1)(d) does not apply. I suspect that the wife really intended to apply under subsection (1)(a) which reads:
“(a) there has been a miscarriage of justice by reason of fraud, duress, suppression of evidence (including failing to disclose relevant information), the giving of false evidence or any other circumstance.”
The wife expressed she did not press subsection 79A(1)(a). Were it to be pressed, the fact is that the wife has been asserting fraud and misconduct generally on the part of the husband throughout the entirety of the proceedings. I made adverse credit findings in respect of both the parties and nothing that I have read more recently gives me any greater confidence in their overall credibility. Were s.79A(1)(a) to be pressed, it would quite clearly amount to an endeavour to re-litigate findings earlier made and is simply not appropriate. It is not necessary to say more than that.
Insofar as the application is pressed under subsection 79A(1)(b), the difficulty with the application is that although the parties have been unable to sell the property in Mexico, it is not in fact impracticable for it to be sold. The picture, as has always been the case, is murky and unclear but it does seem that the following facts are established:
a)The Mexican child support proceedings are concluded and indeed have been so since August 2013.
b)It appears that the husband has been made liable for a debt in the child support proceedings amounting to well over $400,000, a figure considerably in excess of any valuation of the property in (omitted) Mexico belonging to the parties.
c)The child support debt is in some fashion an encumbrance on the property. The husband referred to it as a caveat.
d)It is open to the wife to seek to remove the caveat. She says that this would take a very extended period of time and the husband says it would take a matter of months. Nonetheless, it is an order capable of being made pursuant to Mexican law.
e)The house has from time to time been the subject of debts in relation to moneys owed to the local municipal authority. That authority has in the past threatened to take proceedings to sell the property to recover cancelled debts and the like. The fact that the wife has felt it necessary to pay out the council debts to avoid such sale suggests that a creditor may well be able to obtain judgment relatively quickly. If proceedings were likely to be as attenuated as the mother asserts in relation to the child support debt, there would have been no urgency to compel her to pay the municipal debts.
It is, of course, true that as long ago as 21 June 2011, I ordered the wife to sell the property in Mexico and I further ordered the husband to “do all acts and things that may be required to enable the respondent to sell the Mexican property”. It would appear that the execution of a power of attorney would, as the husband appears to concede, enable this process to take place relatively quickly.
It is, however, important to remember the basis upon which the court has thus far addressed this aspect of the dispute. In my first Reasons for Judgment dated 21 June 2011, I directed that the Mexican property be sold. This would enable a more satisfactory quantification and subsequent distribution of the pool. I took the view (see paragraph 86) that the child support debt, should it occur, should not be included in the pool.
In my second judgment dated 10 November 2011, I noted that both parties had failed to comply with my earlier orders as to the sale of the property. The wife’s failure was the more marked. I noted (paragraph 51) that the position in Mexico was so complicated and hard to understand that it was impossible to decipher exactly what was going on. I continued to put aside the child support debt in Mexico in deciding that the parties’ non-superannuation assets should be adjusted as to 65 per cent to the husband and 35 per cent to the wife (paragraphs 53-54). I made the orders by way of part property settlement only in anticipation that at some point, the Mexican proceedings would come to an end and that this would operate upon the disposition of the Mexican property.
In my third judgment, given 31 August 2012, I refused to revisit the orders and declarations made in respect of the Mexican interests (paragraph 43) and repeated that all aspects of the Mexican dispute were impenetrable. I observed “the parties will have to sort out the property and the child support debt in Mexico themselves”. I observed that the child support debts “stands or falls on its own” and that (paragraphs 38-39):
“…I have now come to the conclusion that this matter cannot be delayed until the Mexican proceedings are ultimately finished. As I understand it, they have been going forward in form or another since 2003 and appear to involve at least one or two grounds of curial activity. One wonders if it will ever finish.
I am simply going to order that the declaration or order number 11 made on 10 October 2012 be set aside. That was the declaration that was in part property settlement only. The orders will otherwise be final orders and all extant applications will be dismissed.”
It is, of course, apparent that there has been a significant change in circumstance in that the Mexican proceedings ended in 2013 favourably to the wife. I note that the Full Court in its appeal decision was well aware of this. The Full Court declined to interfere with the way in which I dealt with the matter and, indeed, putting the matter in the round, in my respectful view, endorsed the approach that I had taken in what were forensically difficult circumstances.
Even after delivery of the Full Court judgment in February 2015, it took the wife another five months until July 2015 to file her application which is now before this court.
I am not satisfied that it is impracticable for the Mexican court orders to be carried out. The wife’s own responses to endeavours to force a sale of the property by the municipal authorities suggest that these matters must be capable of happening reasonably quickly. This is consistent with the husband’s position that such a judgment could be obtained within a matter of months.
Furthermore, although the husband has from time to time not done things, which it would appear he might have the capacity to, to sell the property in Mexico, that is not in fact what the wife is seeking in this proceeding. She is seeking that the court in some fashion work out the value of the property in Mexico and order the husband to pay that to her in Australia. She makes no suggestion as to what should occur to the judgment in her favour in Mexico and as things presently stand as far as I can see the most likely result of this court concluding the exercise that the mother seeks be undertaken would be that she would have a major monetary amount awarded in her favour in this country whilst still retaining ownership of the property in Mexico and/or the child support judgment in her favour.
Despite the fact that the proceeding in Mexico is ended, I am still wholly unclear as to quite what the proceeding was about. I have been told inconsistently from time to time by the wife that the child support debt continues until both children are 25 or that it may ensure in some way to her own benefit and continue for the whole of her life. I am utterly unpersuaded that I should exercise the discretion that the court has to permit the wife to obtain orders under s.79A.
As if these uncertainties were not enough, it is hard to see how the forensic exercise the wife seeks be undertaken can occur. Presumably in some fashion she would seek to show the value of the money secured by the encumbrance, be it caveat or otherwise, over the property. Presumably this is more than it is worth. In effect and in summary, leaving aside questions of proof, the net effect of what the wife seeks would be to set aside the order that I felt it appropriate to make which dealt with the pool of the parties’ property interests by excising the child support debt. Leaving aside the question of whether I am functus officio (which I suspect I am), I am persuaded that the outcome I produced is still the most just and equitable way to proceed. Quite clearly, as the husband submits at least broadly, were the child support debt to be included in the parties’ assets, it would radically alter the outcome and give serious rise to the possibility of a further revisiting of the parties’ property division. The husband would seem to me to have a strong case under s.79A if that were so.
These parties show an all too keen desire to litigate and in my view it is far preferable that this proceeding come to an end. This is all the more the case in the light of some of the other orders that the wife seeks to which I shall now turn.
Final Orders Sought 2
This is in effect an application to join the husband’s mother to the proceedings. It further seeks to encumber Ms S’s real property and in effect to enable the wife to lodge caveatable interests arising against any of the husband or his mother’s properties arising out of the alleged debts in Mexico. This aspect of the matter can perhaps best be addressed briefly. The wife did seek orders against Ms S in the original proceeding. I ruled against her. It is perhaps sufficient to note the following observation of Faulks DCJ in the appeal at [215-216] where his Honour said:
“Other challenges relate to his Honour’s asserted failure to permit the wife to join the husband’s mother as a party in circumstances when orders had been made and his Honour’s refusal to permit the wife to rely on affidavits ostensibly written by the parties’ children.
Each of these matters to which the wife’s ground relate concern procedural decisions and in relation to which his Honour gave reasons and in relation to which no error has been shown.”
The basis asserted for the joinder of Ms S is set out in paragraph 102 of the mother’s affidavit. As I have already indicated, the matters there set out all seem to me to predate my original judgment. They cannot now be revisited. Further, even if I am wrong in this regard, the wife has no reasonable prospects of prosecuting this aspect of her claim successfully (s.17A Federal Circuit Court Act). Even if one were to accept the matters asserted in the wife’s affidavit, they go nowhere near justifying any orders being contemplated against Ms S.
To Final Orders 3-5
These all relate to the forensic exercise of valuing the wife’s so-called interest in the Mexican property and making consequential orders to enforce it. I have already dealt with these above.
Final Orders 6
I do not propose to reassess the total pool of assets. For the reasons given, I repeat the parties will have to sort the Mexican child support debt out in Mexico themselves.
Final Orders 7, 8, 9, 10, 11, 12, 13, 14 and 15
All of these matters relate to money disbursed or to be disbursed by the wife in relation to the maintenance, one way or the other, of the Mexican property. For the reasons given, I am not minded to embark upon a further full hearing of this matter or indeed any hearing at all. Nonetheless, I make the following points about these expenditures. If the non-payment of municipal council fees and the like could engender a forfeiture of the property, which I can only take to mean a sale through court order obtained by the authority, it is hard to see why the wife would resist it. In any event, the wife was given $20,000 by way of property settlement to enable her to attend to the sale of the property and there has never been any satisfactory accounting as to what that was spent on. It is entirely inappropriate to attend to these matters all of which come long after the final orders were paid. Some may have accrued prior to final orders having been made in 2012 but the whole point about final property orders is that they finally dispose of the parties’ property interests.
Final Orders Sought 16-17
As best I can construe these matters, they appear to relate to the wife’s desire that the husband issue her with a power of attorney. As already indicated, however, the wife has not pressed this application and has expressly not sought an order that the husband give her such a document. Furthermore, for the reasons already given, I would not be disposed to make such an order.
Orders Sought 18
There is no evidence that there are any liabilities incurred by the husband in relation and secured over the Mexican property. In any event, it is far too late to raise this matter now.
Final Orders Sought 19 and 20
These are orders requiring the husband to pay in Australia the alleged $731,473 plus interest accruing on the child support debt. For the reasons I have given, this will not be done.
Final Orders Sought 21
This seems to seek an order the husband pay the costs of the proceedings in Mexico. The wife has asserted to the court that the proceedings in Mexico are conducted on a cost-free basis (this being the prima facie position under s.117 of the Act in this country also) and it is immediately apparent that this is utterly inappropriate. The suggestion that this court should by court order make a costs order that the wife could not have obtained in the proceedings in which the costs arose is immediately apparent to be inappropriate.
Orders Sought 22
That the wife should now seek an order that the Property B property be transferred to her speaks volumes for the essentially misguided if not frivolous and vexatious nature of the application more generally. The wife well knows that this property was sold to a third party in 2012. It is not necessary to say more.
Orders Sought 23
This is hard to understand. It seems to suggest that if the court makes orders effectively transferring property of the husband to her, then any liability on that property remain his and she receive the property unencumbered. Once again, it is immediately apparent that such an order would not be appropriate.
Orders Sought 24
This order seeks to revisit the issue of rental paid upon the Property B property from time to time. This was an issue dealt with in my earlier judgments and it would plainly be inappropriate to allow it to be revisited.
Orders Sought 25
This seeks further property adjustment. I declined to make any orders in relation to chattels in the original proceedings, although I was aware that there were a number of disputes about such matters. I have determined that matter and it will not be revisited.
Orders Sought 26-28
Insofar as the application seeks to revisit and/or expand issues to do with (omitted), the existence of this company and its circumstances were the subject of some attention in the original proceedings. There is no doubt in my mind that such claims should have been brought in that proceeding and fall foul of the Anshun estoppel doctrine.
Furthermore, even if this is not correct, the company (omitted) is based in Mexico and (omitted) is based in (country omitted) and the circumstances surrounding the various domains in order sought number 28 is uncertain.
This aspect of the case has all the hallmarks of the prolixity and uncertainty that so characterise the mother’s application more generally. It would be wholly inappropriate, in any event, to re-embark upon such an unproductive area of disputation. I note that the husband’s position is that he is essentially unaware of these matters in any event.
Order Sought 29
This once again seeks orders against Ms S, the husband’s mother. For the reasons given, I do not propose to revisit that matter now. There is no evidence provided by the wife, in any event, that Ms S has used the wife’s power of attorney in any fashion, let alone to her detriment.
Order Sought 30
This requires the Court to make an order about a vehicle that is in Mexico, owned by (omitted). The Court will not make an order that operates extraterritorially and which, in my opinion, would have no force and effect in binding any relevant Mexican authority in any event.
Order Sought 31
I do not propose to make costs orders in this proceeding, let alone would I be prepared to make orders in relation to the proceedings that are now finished as long ago as 2012.
Order Sought 32
The husband has litigated in this Court and achieved a result closer to what he sought than what the wife had sought. He has successfully resisted an appeal. He will be very substantially successful in these proceedings. There is simply no question of declaring him a vexatious litigant.
The Matters Raised by the Husband’s Response
The respondent seeks the dismissal of the application with costs, to have the applicant declared a vexatious litigant and that the applicant be barred from harassing the respondent or his family.
The question of costs will be dealt with separately. Nonetheless, the third remedy sought is clearly inappropriate. There are laws available to the husband in the State of Victoria should he feel that any harassment is unlawful.
So far as the claim that the wife be declared a vexatious litigant is concerned, it is important to remember the nature of the test.
The power of the Court to make a vexatious proceeding order is contained in s.88Q of the Federal Circuit Court of Australia Act. Relevantly, it reads:
“(1) This section applies if the Federal Circuit Court of Australia 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 a vexatious proceeding in an Australian court or tribunal.
(2) The Federal Circuit of Australia may make any or all of the following orders:
(a) an order staying or dismissing all or part of any proceedings in the Federal Circuit Court of Australia already instituted by the person;
(b) an order prohibiting the person from instituting proceedings, or proceedings of a particular type, in the Federal Circuit Court of Australia;
(c) any other the Federal Circuit Court of Australia considers appropriate in relation to the person.”
That power does not, however, derogate from any other powers the Court has to deal with vexatious proceedings (s.88P).
The Court’s additional powers also include, relevantly, r.13.10 of the Federal Circuit Court Rules 2001, which permits the Court to, inter alia, dismiss a claim if it is satisfied the proceeding or claim for relief is frivolous or vexatious or otherwise an abuse of the process of the Court.
In order to obtain an order against somebody as a vexatious litigant, it is necessary first for the Court to find that the particular proceeding brought is vexatious and, further, that the litigant has habitually, persistently and without reasonable cause instituted other vexatious proceedings in either this Court or another court.
As to the meaning of “vexatious”, see Attorney General v Wentworth (1988) 14 NSWLR 481, where Roden J observed at [491]:
“It seems, then, that litigation may properly be regarded as vexatious for present purposes on either objective or subjective grounds. I believe that the test may be expressed in the following terms:
1. Proceedings are vexatious if they are instituted with the intention of annoying or embarrassing the person against whom they are brought.
2. They are vexatious if they are brought for collateral purposes, and not for the purpose of having the court adjudicate on the issues to which they give rise.
3. They are also properly to be regarded as vexatious if, irrespective of the motive of the litigant, they are so obviously untenable or manifestly groundless as to be utterly hopeless.”
Whatever might be thought of this particular proceeding, which might well, in part, be thought to have been brought for a collateral purpose, namely, the enforcement of the Mexican court decision in terms other than which it was given (for example, the application for costs in the Mexican proceeding) it is immediately clear that this Court cannot find that Ms Field has brought habitual, persistent vexatious proceedings.
She has conducted lengthy proceedings in Mexico, in which she was successful. She has conducted lengthy proceedings, of which this is merely a continuation, on one view, in Australia. She has been less successful but I am not prepared to find that she meets the latter part of the definition (habitual, persistent vexatious proceedings), irrespective of whether she meets the first part.
Accordingly, although this deals with the matter shortly, I am not prepared to make a vexatious litigant order against Ms Field.
Insofar as the order seeks costs, I note that both parties have been self-represented in any event. Little is said by the husband as to his financial circumstances (he has refused to provide a Financial Statement) and the wife is still a student and although she has a not unsizeable amount of money in the bank, she is certainly not a person with ready income to meet expenses.
While the wife has been wholly unsuccessful in the case, the husband has also been unsuccessful, inasmuch as he has not obtained the vexatious litigant order he sought.
Furthermore, while the wife’s application has, in my view, been essentially misconceived and in part represents an abuse of the processes of the Court insofar as it seeks, effectively, to revisit matters already determined, her conduct is simply not such that it is appropriate in all the circumstances to make a costs order.
Conclusion
I have already said, perhaps all too often, how difficult this litigation has been at every stage. It remains so. Taking the wife’s application overall, it is readily apparent that any hearing and determination of the matters she seeks to advance would involve a major further tranche of litigation.
I dealt with these parties’ circumstances as best I was able and determined what should occur in respect not only of their property in Australia but their property in Mexico in 2011 to 2012. While it is true that the Mexican child support proceedings have now ended, I do not derogate one inch from my earlier conclusion that that is a matter which, of its nature is required to be addressed by the Mexican authorities.
I have no confidence whatsoever that any material would be presented by the parties to this Court in comprehensible form to enable any disputation to be determined in a sensible way in any event. If it takes a long time for the Mexican court system to deal with the matter, it will nonetheless deal with it.
If that gives rise, or if indeed it already gives rise, to enforceable obligations in Australia, it is a matter for the wife to take appropriate advice and proceed on that advice. What is clear is that this present approach to the resolution of those matters is not one the Court should entertain.
As with my earlier judgments, I remain keenly conscious that this judgment is poorly structured and ranges in a somewhat haphazard way over the issues the parties have raised. I have done my best to present a coherent response to the scattergun, misconceived and inappropriate applications that both parties brought.
I certify that the preceding eighty-five (85) paragraphs are a true copy of the reasons for judgment of Judge Burchardt
Date: 26 July 2016
Key Legal Topics
Areas of Law
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Civil Procedure
Legal Concepts
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Abuse of Process
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Stay of Proceedings
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