FINCH & SHIBO
[2013] FamCA 136
FAMILY COURT OF AUSTRALIA
| FINCH & SHIBO | [2013] FamCA 136 |
| FAMILY LAW – ORDERS – Variation – Where the father provides no grounds for a variation of consent orders FAMILY LAW – VEXATIOUS PROCEEDINGS – Order requiring party to obtain leave of the court before instituting fresh proceedings FAMILY LAW – PRACTICE AND PROCEDURE – Parties – Vexatious litigant |
| Family Law Act 1975 (Cth) s 118 |
| Bemert and Swallow [2009] FamCA 5 Rice v Asplund (1979) FLC 90-725 SPS and PLS (2008) FLC 93-363 |
| APPLICANT: | Mr Finch |
| RESPONDENT: | Ms Shibo |
| FILE NUMBER: | BRC | 2788 | of | 2009 |
| DATE DELIVERED: | 7 March 2013 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Forrest J |
| HEARING DATE: | 26 September 2012 |
REPRESENTATION
| FOR THE APPLICANT: | Mr Finch in Person |
| COUNSEL FOR THE RESPONDENT: | Ms Walker-Munro |
| SOLICITOR FOR THE RESPONDENT: | Legal Aid Queensland |
Orders
The Amended Initiating Application filed by the father on 13 August 2012 is dismissed.
The father, Mr Finch, must not without the leave of a Court having jurisdiction under the Family Law Act 1975 commence any proceedings seeking orders pursuant to Part VII of the Family Law Act 1975 in any court, either State or Federal, in respect of the child, K, who was born on … September 2007.
Any application the father files in which he seeks leave to commence any proceedings pursuant to Part VII of the Family Law Act 1975 shall not be served on the mother of the said child and shall be heard, at first instance, on an ex-parte basis.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Finch & Shibo has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT BRISBANE |
FILE NUMBER: BRC 2788 of 2009
| Mr Finch |
Applicant
And
| Ms Shibo |
Respondent
REASONS FOR JUDGMENT
On 22 November 2011, I made orders in proceedings between these two parents and an Independent Children’s Lawyer finalising parenting proceedings in respect of the child, K, who was born in September 2007. The proceedings up to the point of trial had been difficult and protracted, principally because the father did not have legal representation and, as the father makes out in his own case, because he suffers from various mental health issues.
However, through a scheme offered by the Bar Association of Queensland, the father was represented at the time of trial by counsel who appeared on a pro bono basis. No doubt, through the good endeavours of that barrister and the barristers and solicitors who represented the mother and the ICL, the matter was able to be resolved by agreement reached between all three parties. Very comprehensive orders were made by me with the parties’ consent. The terms of those orders had been signed by the parties and presented to the Court. They all asked the Court to make these terms into orders regulating parenting matters between them.
Those orders provided for the parties’ little girl to spend time with the father from Friday afternoon to Sunday afternoon each second weekend. They provided for the father to collect her from her childcare centre at Suburb M on the Sunshine Coast, north of Brisbane, at the start of that time and to return her to her mother’s care at a children’s contact centre at Moreton Bay Suburb B, also north of Brisbane and not far from the father’s home, at the finish of such time.
Just over six months after those final orders were made the father filed an application seeking to change various parts of them, including the arrangements for the collection and return of the child at the beginning and end of her time with him. Around that time he also filed a contravention application against the mother.
That contravention application was listed for hearing before Murphy J in this registry on 7 August 2012. It was dismissed that day, after the father indicated he would discontinue it. However, on that same day, by consent, the orders I had made on 22 November 2011 were amended in some minor respects.
On 13 August, 2012, the father filed an Amended Initiating Application in which he sought further amendments to the orders of 22 November, 2011. They included having the transition arrangements changed from the child’s childcare centre at Sunshine Coast Suburb M and the C Contact Centre at Moreton Bay Suburb B to D Contact Centre at Town E.
The matter was listed for trial by me on 26 September, 2012. When the matter came on, the father made it clear that all he was wanting the Court to determine was that part of his application seeking a change of the places at which the child was to transition between her parents’ care.
The mother opposed any change. She sought to have the father’s application dismissed as frivolous or vexatious and for an order to be made restraining the father from commencing proceedings pursuant to Part VII of the Family Law Act, in respect of their child, without first obtaining the leave of the Court.
I have determined to dismiss the father’s application and to make the order sought by the mother.
What was the father’s case as to why the pick up and drop off location should be changed?
Remarkably, on 31 August 2012, the father filed a list of the affidavits upon which he was relying at the trial in which he simply said “I am to rely on all affidavits filed after 22 November 2011, including affidavits filed with Contravention Application.” I have counted and read thirteen affidavits filed by him after 22 November, 2011.
Most of the material in those affidavits is irrelevant, prolix, scandalous, vulgar, rude and disrespectful to the mother, members of her family and her legal representatives. Some of it is even contemptuous of this Court. In that respect, it is similar to the affidavit material the father filed in the lead up to the November 2011 trial and also in support of numerous contravention applications he brought against the mother in that period. It is, I am satisfied, symptomatic of the father’s complete inability to constrain his behaviour within the bounds of acceptable community standards, but also of his broader personality and mental health problems.
Critically though, the paragraph of the father’s affidavit filed with his Initiating Application on 8 May 2012 in which he gives evidence about why he wants the pick up and drop off points changed says this:
The applicant has attempted to comply with the pick up point, as mentioned within the FCA 22 November 2012 orders, regards to the [Sunshine Coast Suburb M] Day Care, Center, due to severe pshycological problems, The Applicant cannot facilitate pick up from this location due to distance and time along with not having a support person available within the applicants vehicle from time to time, But the applicant can manage with medium difficulty to drive to [F] Road houses on the Bruce Highway, which takes 30 minutes each direction, the drive to [Sunshine Coast Suburb M] day care Center takes over one hour each direction if the traffic and or road conditions are normal, when the road conditions and weather is not good the drive can take up to three hours each direction (exactly as deposed to, including as to errors)
The father lives at Moreton Bay Suburb G, just north of Moreton Bay Suburb B. The mother lives at Sunshine Coast Suburb M. When the father consented to the orders that I made on 22 November 2011, I understand the mother and the father lived in the same places and the father had for years been having health difficulties. The evidence establishes that those health difficulties included mental health and personality difficulties as well as numerous physical health issues, including one associated with an old shoulder injury.
The evidence the father relied upon also included material from doctors, predating the 22 November 2011 consent order, indicating that the father had previously reported difficulty with driving over distances because of suffering panic attacks and problems associated with his physical ailments. However, notwithstanding the alleged existence of these earlier problems, the father consented to the orders I made on 22 November 2011 that oblige him to collect the child from her Sunshine Coast Suburb M childcare centre and, from the beginning of school in 2013, from her school (which one would reasonably expect to be in the Sunshine Coast Suburb M area).
When I made the November 2011 orders, I considered that part of the orders to be in the child’s best interests as the orders allowed the mother to avoid coming into the physical presence of the father in circumstances where the evidence satisfied me that it would not be in the child’s best interests for that to happen. There is a history of conflict and domestic violence in the relationship. The mother has obtained domestic violence protection orders against the father and I have no doubt, having regard to the evidence I have seen and my own personal observations of the father, that he could not restrain himself from being rude and abusive to the mother in her presence.
The evidence also established that the father had, in written communication directed to the mother and her lawyers in the few weeks after he filed his fresh Initiating Application, made it absolutely clear that he no longer wished to comply with the orders as to the places of pick up and hand over of the child. My interpretation of the father’s communications leads me to conclude that his position on that point was sourced in unhappiness and intransigence in respect of issues he was having with the management of the C Contact Centre and that he was seeking to justify his change of position by reference to his pre-existing health issues and the fact that the mother had relocated with the child from Moreton Bay Suburb G to Sunshine Coast Suburb M after separation and, therefore, should have to do the travel. Knowing that he had consented to the orders in November 2011 notwithstanding those pre-existing circumstances, the father appeared acutely conscious of being confronted with the problem of having consented to the orders in the first place. I understood him to try to get around that problem by asserting that he had been pressured into agreeing to the terms of the consent orders by the lawyers in the proceedings, including the barrister who had acted for him.
In addition, at the trial in September 2012, the father also gave evidence that he had suffered another accident whilst overseas working in July 2012. He said he had exacerbated his pre-existing shoulder injury, requiring surgery and making it difficult for him to drive to Sunshine Coast Suburb M. His evidence about this was troublingly inconsistent.
It was clear that upon his return from overseas he had gone up to Sunshine Coast Suburb M by car and collected the child for some of her weekends with him. He had been accompanied by his new partner on occasions. The Father gave the impression that his partner had driven the car, but when she gave evidence and was cross-examined, she said that when she went with him to Sunshine Coast Suburb M she went as a passenger. The father also relied on a late filed affidavit to which he attached a note from a hand and upper limb surgeon that said that the father was unable to drive for three months. That note was not attached to an affidavit of the doctor and the doctor was not made available for cross examination.
Furthermore, at the trial, the father was confronted with another major obstacle to his application to change the transition points to D Contact Centre at Town E. The Court was informed that D Contact Centre had put a bar on any use of that centre by the father due to his previous conduct there. That centre was not available as an alternative venue to the ones provided in the existing order. The father conceded that information was correct and then moved to advocating for the transition point to be moved to a roadhouse location on the Bruce Highway just north of the Town E-Town H turnoffs. He argued that he could more readily drive there as the distance was not as far as to Sunshine Coast Suburb M. By so doing, he was clearly not pressing an argument that panic attacks or shoulder injury would interfere with his capacity to drive that distance twice in a weekend.
The mother’s case against change
The mother opposed the father’s application at trial. She opposed it on a number of grounds. Firstly, she argued that in accordance with the principles first discussed in Rice v Asplund (1979) FLC 90-725 and affirmed in a long line of authorities following that case: the father could not demonstrate a significant enough change in the circumstances that existed at the time he consented to the orders that he was seeking to change, such as would justify varying the orders, having regard to the best interests of the child. She argued that in any event his application was frivolous and/or vexatious and could be dismissed on those grounds pursuant to s 118 of the Family Law Act. In fact, she argued that the Court should, consequent upon a finding that the father’s application was frivolous or vexatious, order that the father not commence any further parenting proceedings in respect of their child without first obtaining the leave of the Court. Finally, she argued that if the Court determined to entertain his application it should be dismissed because of the domestic violence issues and the need to protect her and their daughter from the risk of exposure to abuse and violence at handovers by leaving the transition points where they were currently fixed by the existing orders so that they did not have to come into physical contact with each other.
Why have I decided to dismiss the father’s application?
Significantly, under cross-examination, the father conceded that he had recently been driving distances greater than the 20 kilometres to which he had asserted he was restricted, thus seriously damaging the credibility of his assertion that he could not drive such a distance. In addition, it was absolutely clear to me that one of the emails the father sent to the mother, which was put into evidence, purporting to be from a doctor in Iran, was nothing but a poorly constructed fabrication by the father. This fact, coupled with the failure to put any medical evidence before the Court in admissible form attached to sworn affidavits of doctors who were made available for cross-examination, caused me to give little weight to the notes that the father asserted were from doctors going to his alleged incapacity to drive. In any event, I was not satisfied that the father could not, if he absolutely required it, get the assistance of his partner or some other person in driving to Sunshine Coast Suburb M and back to Moreton Bay Suburb G each second Friday afternoon.
Simply put, having considered all of the evidence put before me on this application, the father failed to persuade me that it is in the best interests of the child to change the existing orders. Essentially, he failed for all the reasons advanced on behalf of the mother. He did not demonstrate to my satisfaction that the circumstances had actually changed in the short period of time since the final orders were made so as to justify, considering the paramountcy of the child’s best interests, the change that he sought. As such, this is an example of the application of the Rice v Asplund principle at the end of a hearing as discussed by Warnick J in SPS and PLS (2008) FLC 93-363.
Further, and in any event, the father could not get over the merit of the mother’s argument that the need to shield the child from the risk of exposure to violence and abuse, required transitions to continue to take place in a way that reduced the chance of the mother and the father coming into physical contact. The father offered no available alternative to the current orders that met such requirement. In the absence of the Court considering some other alternative as appropriate, which I do not, the husband also has to fail for this reason.
Finally, I am satisfied that the father’s application, as he ultimately ran it, was frivolous and vexatious and could be dismissed for that reason too. The meaning of the words “frivolous” and “vexatious” was meaningfully discussed by Watts J in Bemert and Swallow [2009] FamCA 5 at [197]-[208]. I am satisfied that “frivolous” means “not worthy of serious consideration”, “insupportable in law”, “disclosing no cause of action or groundless”, “not worthy of serious notice”, and “characterised by lack of seriousness or sense”. “Vexatious” means “having no reasonable prospect of success”, “something that vexes”, and “instituted without sufficient grounds and serving only to cause annoyance”.
I am quite satisfied, particularly from the way in which the father has litigated against the mother from the start of parenting proceedings in this Court, and, in particular, from the way in which he conducted proceedings in the wake of the November 2011 consent orders finalising the original parenting proceedings, that this application, particularly in its final form that went to trial before this Court, was a frivolous one as well as a vexatious one. I am quite satisfied that the father continued with proceedings that became untenable both in law and in fact, out of anger, vindictiveness, and spite, with a view to annoying and trying somehow to get even with the mother for what he perceives to be past wrongs she has perpetrated against him. He was insistent on cross-examining the mother and her sister, attacking their honesty and simply raking over very old ground that had nothing to do with the issue that he was purporting to have this Court determine. In doing so, he did more damage to his own position than he did to their credibility.
This Court has the statutory power, pursuant to s 118 of the FLA, to order that a person shall not institute proceedings under the FLA without the leave of a court having jurisdiction under the Act if it considers that appropriate after dismissing proceedings that it considers frivolous or vexatious. This is what the mother asks this Court to do in respect of the father.
Though this power had previously existed at common law[1], courts have been generally reluctant to make these sorts of orders. It is a serious matter to restrict a person’s right of access to courts of law in a society governed by the rule of law and it should not be done lightly.
[1]Grepe v Loam (1887) 37 Ch D 168; Foran v Derrick (1893) 14 ALT 284; Davison v Colonial Treasurer (1930) 47 WN (NSW); 19 Westpac Banking Corp v Aldred(1986) FLC 91–753
Whilst I have observed that involvement in the court’s process on the one hand does not seem to trouble the father, on the other hand, it does appear to have been taking an enormous emotional toll on the mother. I am satisfied, having regard to the personality of the father and the manner in which he speaks, communicates, relates and litigates, that even the most resilient of characters placed in the mother’s position would struggle to maintain a semblance of emotional balance in the face of such an onslaught. The parties’ little girl needs her mother to maintain good emotional health so that she can concentrate on providing sound parenting for her. It is not in the child’s best interests to allow her mother to be subject to constant harassment through the father shooting off frivolous and vexatious court applications against her at his whim.
Furthermore, as the mother has been drawing on legal aid funding each time the father has brought her to Court so far, there is a broader public interest in ensuring that the precious funds made available for those who need and deserve publicly funded legal assistance are not being used up by people continually having to meet frivolous and vexatious applications.
For these reasons, I am satisfied it is appropriate to make an order pursuant to s 118(1)(c) of the FLA against the father. I make the orders set out at the commencement of these reasons for judgment.
I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 7 March 2013.
Associate:
Date: 7 March 2013
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