Finch
[2017] FamCA 201
•27 March 2017
FAMILY COURT OF AUSTRALIA
| FINCH | [2017] FamCA 201 |
| FAMILY LAW – PRACTICE AND PROCEDURE – Where the applicant father is subject to a s 102Q vexatious proceedings order – Where an application is made for leave to file an Initiating Application for parenting matters – Where the requirements of s 102QE have not been met – Where the matters raised by the father are not new issues – Application for leave dismissed. |
| Family Law Act 1975 (Cth) s 102Q, 102QE Family Law Rules 2004 (Cth) r 11.05 |
| Acres & Cannon No.3 [2016] FamCA 795 | ||||||
| APPLICANT: | Mr Finch | |||||
| FILE NUMBER: | BRC | 2788 | of | 2009 | ||
| DATE DELIVERED: | 27 March 2017 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Berman J |
| HEARING DATE: | 27 March 2017 |
REPRESENTATION
| THE APPLICANT: | The applicant appearing in person by telephone |
Orders
IT IS ORDERED:
That the Application in a Case filed 27 January 2017 be dismissed.
That leave is not granted to the father to file an Initiating Application.
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 Finch has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth)..
| FAMILY COURT OF AUSTRALIA AT BRISBANE |
FILE NUMBER: BRC 2788 of 2009
| Mr Finch |
Applicant
EX TEMPORE
REASONS FOR JUDGMENT
Mr Finch is the father of K, born in 2007 (“the child”). On 22 November 2011, consent orders were made which provided for the parenting arrangements in respect of the child. In short summary, the child was to live with the mother and spend significant and substantial time with the father. The parties were represented by counsel at the commencement of the proceedings and in respect of the consent orders made. The Court was assisted by an Independent Children’s Lawyer (“ICL”).
The father sought to change the orders by an Amended Initiating Application filed 13 August 2012. That application was dismissed, and, on 7 March 2013, orders were made which restrained the father from commencing further proceedings without leave. The father was granted leave to file a fresh initiating application in 2014, upon the condition that the proceedings deal with a narrow compass of issues, namely, the location of handovers, telephone communication and an issue in respect of overseas travel. An ICL was appointed to the proceedings and a trial was heard in 2015.
That hearing was conducted by Forrest J and orders were made which discharged the previous parenting orders and replaced them with different orders which provided; the mother have the sole parental responsibility for the child and the child live with her but spend time with the father during school holidays. Changeover was to occur at the Suburb M State School, and, importantly, Forrest J recorded that the orders for time be spent only during school holidays as sought by the father at the conclusion of the trial.
The father appealed the orders made by Forrest J. That appeal was dismissed by the Full Court on 24 June 2016.
A further Application in a Case with supporting affidavit material was filed by the father on 6 September 2016. The orders sought in the application were that leave be given to the father to file a fresh initiating application. The orders also focused on the father’s dissatisfaction and concern in respect of the manner that he says Forrest J conducted himself, and, accordingly, the father sought that Forrest J disqualify himself.
Pursuant to the orders of 7 March 2013, the application was considered by Forrest J in chambers and his Honour made directions that it be heard on an ex parte basis as was required by the provisions of the Family Law Act 1975 (Cth) (“the Act”). His Honour considered the application for leave to file the initiating application, and, on 22 September 2016, dismissed the father’s application in a case. That application was then the subject of an appeal and was heard by the Full Court, comprising Bryant CJ, Thackray and Strickland JJ on 23 November 2016.
The Full Court delivered reasons on 30 November 2016, and the following orders were made:-
(1)The application in an appeal filed on 7 November 2016, be dismissed.
(2)The application for leave to appeal be dismissed.
That represented a conclusion to that tranche of the proceedings.
On 27 January 2017, the father filed an application in a case seeking the following orders:-
(1)The applicant be granted leave to file an initiating application with supporting affidavit as an urgent priority seeking the reinstatement of 22 November 2011 consent orders with minor changes to changeover location.
(2)That the applicant requests that the three subpoena be issued as an urgent priority and be returned by priority postage.
(3)The matter be heard by any other Family Court of Australia Justice than Colin James Forrest J; and
(4)That Colin James Forrest J to remove himself from the file effective immediately in the interest of procedural fairness and the elimination of deliberate bias and discrimination towards the applicant and to further eliminate any kind of judicial collusion and/or potential corruption.
I have indicated to the father that, in respect of this application, order 3 is no longer a relevant consideration, given that Forrest J is not hearing the application. I have also made it clear that I do not propose, nor do I think it is proper for me to order the removal of his Honour from any further involvement in the file. If an application for disqualification of a judicial officer is made or an application for a recusal is filed, then it is for the judicial officer at first instance to hear and determine the application. If aggrieved, then the party bringing the application can seek relief from the Full Court in respect of an adverse decision.
The focus in respect of the proceedings today is to consider paragraphs 1 and 2 of the application. As indicated, the application is supported by two separate affidavits. The first in time is the affidavit of the father filed 27 January 2017. That affidavit seems to focus on the issue of the need for a subpoena to issue. Paragraph 2 of the affidavit provides:-
The applicant seeks the issue of the enclosed SUBPOENA as a priority to expose collusion and possible corruption.
Under subparagraphs (a) to (g), the proposed recipients of the subpoena are set out. It is likely that the manner in which the subpoena have been drafted would be objectionable, not necessarily because of the focus but because of the manner in which they have been drafted. By way of example, whilst paragraphs 2(a) and (b) are directed to medical practitioners, paragraph 2(c) relates to written correspondence from the Chief Justice of the Family Court of Australia to “Justice Forrest and/or her”, but I think the father meant “his associates”.
Paragraph 2(d) again talks of correspondence in the same terms but this time from his Honour and his associates. Paragraph 2(e) refers to correspondence from the now retired Deputy Chief Justice Faulks to Forrest J or his associates. Paragraph 2(f) relates to communication between Forrest J and the Deputy Chief Justice, and 2(g) is cast to include all correspondence to and from judges of the Full Court, namely, Thackray, May, Kent, Strickland and Ryan JJ to and from Forrest J.
The affidavit then refers to the basis upon which leave should be granted in respect of those subpoena. It is fair to say that a summary of that affidavit is not necessarily directed to the issues in respect of parenting considerations but rather directed to the concerns that the father has in respect of the manner in which he says that Forrest J has dealt with the matter, and to support the father’s allegation that Forrest J has conducted himself in a way that is biased towards the father in his various applications.
The issue of subpoena should not be directed to what might be described as “a fishing exercise”, should not supplant discovery and should be issued only in circumstances where the category of documents is known and that the documents are likely to be relevant. That would be the case ordinarily, but in this case, unless leave is given, there are no proceedings in which the subpoena could have any standing. It would be improper and an abuse of process for subpoena to be issued in the absence of any proceedings.
It seems to me that the prime focus should be whether leave should be granted to the father to file an initiating application. If leave is granted, then it may be that there is some opportunity in respect of matters relating to the subpoena. As has been discussed with the father, the application for leave should not be conducted in a vacuum. I have referred the father to s 102Q of the Act which provides the manner in which vexatious proceedings should be considered, both in terms of whether an order should be made, that a party is a vexatious litigant and, in circumstances where such an order is made and leave is required, the manner in which any application for leave is to be conducted.
There is significant rigour to the provisions. Section 102QE of the Act refers to the bringing of an application for leave to institute proceedings. It applies to a person who is the subject of an order that requires leave before proceedings can be instituted, and it provides a mechanism by which an applicant may apply to the Court for leave to institute proceedings. The proceedings for bringing such an application is designed so that the person who is protected by the order is not vexed by spurious applications for leave.
The procedure is as set out in the Act but summarised as follows:-
(1) The person subject to the order makes an application via an application in a case. The father has done that.
(2) The application must be supported by an affidavit which must comply with the provisions of s 102QE(3). The provisions or the matters that must be complied with are as follows:-
a) The affidavit must list all occasions the person the person has applied for leave;
b) It must list all other proceedings the person has ever brought in any Australian court or tribunal; and
c) It must set out all facts, whether supportive or adverse, known to the applicant in relation to the application.
(3)The application must not be served on any person unless the Court grants orders.
(4) The Court then must consider whether to dismiss or grant the application. If dismissed, then that is the end of the matter.
The Court may make an order dismissing an application under s 102QE if it considers the affidavit does substantially comply with s 103QE(3). If granted, and before doing so, the person against whom the proceedings are intended to be brought must be served and then there is a hearing in which the respondent is given a reasonable opportunity to be heard. The application can then be dismissed or granted. The Court may only grant leave if it is satisfied that the proceedings are not the vexatious proceedings.
Before there is a consideration of what might be considered the merits of the matter in terms of the parenting issues, there are two steps that have to be undertaken. The first is that the application in a case must satisfy the provisions of s 102QE. The second is that if leave is given, it is conditional leave, that is, there is another step which is to give the respondent in the proceedings a reasonable opportunity to be heard.
Rule 11.05 of the Family Law Rules 2004 (Cth) (“the Rules”) contains brief administrative arrangements for such an application.
This rule described the procedure to be adopted when an application is made by a person or persons affected by an order pursuant to s 102QB(2).
Under the procedure, the application for permission to commence proceedings is initially heard by the Court without notice to the other party. The intention of the Act is clearly to protect a potential respondent from the expense and waste of time involved in opposing vexatious applications. If permission is not granted, then a potential respondent is not served. It is only if the Court decides that the application has merit that the application must be served.
In Vlug & Poulos (1997) FLC 92-778, the Full Court stated that the power to limit the ability of the parties to bring proceedings should be exercised with caution and reserved for the clearest of cases. That decision was made in accordance with the old Family Law Rules. In the decision of Cannon & Acres [2014] FamCA 104, being a decision of Benjamin J, the mother sought a vexatious proceedings order pursuant to s 102Q of the Act. The order was granted.
The father in that matter brought a recent application to s 102QE in September 2016. Rees J delivered reasons in the decision of Acres & Cannon No.3 [2016] FamCA 795 and considered the father’s application in a case seeking leave to file an initiating application seeking final parenting orders. The mother did not participate in the proceedings. In that case, the father had complied with the provisions of s 102QF and the application was determined according to those provisions. The issue before the Court was whether the proceedings which the father wished to institute were vexatious.
Her Honour considered the definition of vexatious proceedings as defined in s 102Q and referred to the decision of Gallo v The Attorney-General, being an unreported decision of the Supreme Court of Victoria of 4 September 1984, as to the meaning of the word “vexatious”. The decision is helpful and refers to a number of Federal Court and Family Court decisions. At paragraph 32, the following appears:
Further, in determining that a proceeding is vexatious, it is not necessary for the court to identify that any particular party to the proposed litigation would be troubled, vexed or harassed by the proceedings. The legislation is protective not only of the interests of persons who may be joined in or otherwise directly or indirectly affected by the vexatious proceeding, but also of the public interest in the proper administration of justice more broadly. So much was recognised by the Full Court of the Federal Court in Fuller by reference to the right of other litigants to access the resources of the Court which, of course, are not unlimited.
In respect of the application before me, whilst I have indicated that the affidavit material of 27 January 2017 addresses matters in respect of the subpoena, it is nonetheless a document that needs to be brought to account in terms of the overall determination of the father’s application. I bring that affidavit to account.
I refer, however, now to the subsequent affidavit of the father of 15 February 2017. The gravamen of that affidavit can be seen, I think, from the first few paragraphs of the affidavit, and I set those out for assistance:
(1) All and every action delivered and caused by Colin James Forrest J is deliberate and personal towards the applicant.
(2) Colin James Forrest J has dismissed all and every piece of medical evidence without any conscience that the applicant has supplied from treating doctors and specialists.
(3) Colin James Forrest J has abused power towards the applicant since 2011 without any conscience on a deliberate and personal basis.
(4) The applicant’s medical condition prohibits the applicant from travelling alone when the panic attacks are severely heightened.
(5) The applicant’s medical condition has expanded to a point that the applicant is having serious difficulties to travel alone, even within and at the applicant’s Queensland suburb, and Colin James Forrest has nil regard to the medical situation that the applicant has suffered since the age of 22.
The affidavit has further paragraphs with a similar thrust in respect of the assertion that Forrest J has discriminated against and is biased in respect of the father. I also have had regard to some of the annexures to this affidavit which relate to matters of the medical condition of the father, in particular, paragraphs 13, 15 and 20 of his affidavit. I also bring to account issues in the affidavit of 27 January 2017.
The concern, however, is that much of the matters raised in the two affidavits that are filed in support of the application are matters that were considered by Forrest J and the Full Court in previous proceedings. I refer to the judgments of Forrest J of 22 September 2016, and then, also, the remarks and determination of the Full Court in the reasons delivered on 30 November 2016. I do not consider that anything new has been raised in either the application in a case, but more relevantly, in respect of the affidavit material that has been filed.
The father has not complied with s 102QE of the Act in respect of the matters that must be set out in an affidavit that supports an application for leave. These are not matters relating to the filing of an initiating application and then a consideration as to whether there has been a material change in the circumstances of the parties or the children which would properly invite the Court to have a further consideration to the parenting orders. They are matters that have been raised before but are to be seen against the background of an application for leave that is required to be considered before issues relating to the parenting considerations are able to be considered.
I bring to account the matters raised by the Full Court in the judgment delivered on 30 November 2016. I am of the view that there is no merit in the father’s application in a case seeking leave. I consider that there are no new issues that have been raised and that the father has not satisfied the obligations as set out under the Act before leave can or should be granted. The affidavit does not comply with the requirements of s 102QE(3) of the Act, but even if it had, there is nothing disclosed in the affidavit material which has not been the subject of considerable litigation and past judicial consideration.
I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Berman delivered 27 March 2017.
Associate:
Date: 5 April 2017
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