FINDLAY & DANIELS

[2015] FamCA 530

FAMILY COURT OF AUSTRALIA

FINDLAY & DANIELS [2015] FamCA 530

FAMILY LAW – PROCEDURE – Applicant is subject to s 118 order which restrains her from filing any further applications in this Court without first obtaining permission — applicant wishes to apply to the Court to have her name removed from the Airport Watch List — applicant ordered to serve application upon the party who initially sought and obtained the Airport Watch List order

Family Law Act 1975 (Cth) ss 118, 102QE, 102QF, 102QG

Family Law Rules 2004 (Cth) r 11.05

APPLICANT: Ms Findlay

RESPONDENT: Ex-Parte the Respondent

FILE NUMBER: MLC 1996 of 2008

DATE DELIVERED: 1 July 2015

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 3 June 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: In Person

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT: Ex-Parte the Respondent

SOLICITOR FOR THE RESPONDENT:

Orders

IT IS ORDERED THAT

1. Leave is granted to the applicant, Ms Findlay, to proceed with her application filed 25 May 2015 only insofar as she seeks the removal of her name from the Airport Watch List.

2. To facilitate the wife proceeding with the part of her said application in which leave is granted, she serve the said application and her affidavit in support on the respondent and be in a position to prove proper service on the hearing date.

3. This matter be set down for hearing before me on 15 July 2015 at 9.00 am.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Findlay & Daniels 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 MELBOURNE

FILE NUMBER: MLC 1996  of 2008

Ms Findlay

Applicant

And

Ex-Parte the Respondent 

Respondent

REASONS FOR JUDGMENT

1. This matter came before me in the Judicial Duty List on 3 June 2015. The applicant appeared in person. I reserved my decision and noted that I would deal with the application on the papers.

2. The parties in this case have been involved in protracted litigation resulting in the pronouncement of numerous orders, over the years, by judges of this Court.[1] Two such orders are relevant to the present proceedings.

   [1] Dessau J made final orders for property settlement on 9 March 2010: see Daniels & Findlay [2010] FamCA 195.

3. The first is an order made by Dessau J on 21 January 2011, as follows:

   That pursuant to s 118 of the Family Law Act the wife shall not, without leave of a Court having jurisdiction under this Act, institute proceedings under this Act save that her rights of appeal are not affected by this order.

4. The second is an order made by Macmillan J on 29 May 2012, as follows (emphasis original):

   Until further order the respondent wife [MS FINDLAY] born … February 1947 be and is hereby restrained from leaving the Commonwealth of Australia AND IT IS REQUESTED that the Marshall and all officers of the Australian Federal Police and the police forces of the States and Territories give effect to these orders by placing the respondent’s name on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the respondent’s name on the Watch List until the Court orders its removal.

5. The present proceedings were initiated by the wife, through an application in a case and supporting affidavit (sworn on 18 May 2015) both filed on 20 May 2015. The wife seeks orders that:

   a)her name be removed from the Airport Watch List in order that she be allowed to travel outside Australia;

   b)her application be dealt with ex-parte; and

   c)her application in a case be accepted for lodgement at the Melbourne Registry.

6. Section 118 of the Family Law Act 1975 (Cth) (“the Act”) has been amended since Dessau J made the order of 21 January 2011, but at the time the order was made the section read:

   (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.

7. Under s 102QE(2) of the Act, a person who is the subject of a vexatious proceedings order may apply for leave to institute proceedings that are subject to the order. While this provision was not in force in 2011 when the s 118 order was made, under r 11.05 of the Family Law Rules 2004 (Cth), s 102QE(2) nonetheless applies. The rule states:

   (1)  This rule applies if the court has made an order under:

   (a) subsection 102QB(2) of the Act; or

   (b) any of the following, as in force immediately before the commencement of Schedule 3 to the Access to Justice (Federal Jurisdiction) Amendment Act 2012:

   (i) paragraph 118(1)(c) or subsection 118(2) of the Act;

   (ii)  paragraph 11.04(1)(b) of these Rules;

   and the person against whom the order was made applies for leave to institute or continue proceedings.

   (2) An application under subsection 102QE(2) of the Act must be:

   (a) in the form of an Application in a Case; and

   (b) made without notice to any other party.

   (3) On the first court date for the application, the court may:

   (a) dismiss the application; or

   (b) order the person to:

   (i) serve the application and affidavit; and

   (ii) file and serve any further affidavits in support of the application; and

   (iii) list the application for hearing.

8. As is evident from the orders sought by the wife, she seeks that I do more than I am able to under the rule set out above. The wife deposes in her affidavit sworn on 18 May 2015 (at [3]) that (emphasis original):

   I am not going to be stupidly pedantic and make APPLICATIONS to MAKE AN APPLICATION ad infinitum. Technically I should have to MAKE AN APPLICATION TO MAKE THIS APPLICATION! I trust that the Honourable Judge, in this case, will allow the attached Application in a Case to remove my name from the watchlist (prohibiting my departure from Australia) to be lodged with the Registry.

   This paragraph illustrates that the wife is aware of the procedure that she must follow prior to filing a substantive application such as that seeking the removal of her name from the Airport Watch List.

9. If this application is to proceed, I must treat it as an application for leave to file and cannot consider the application to remove the wife’s name from the Airport Watch List.

10. Section 102QE(3) of the Act requires that:

    The applicant must file an affidavit with the application that:

    (a) lists all the occasions on which the applicant has applied for leave under this section; and

    (b) lists all other proceedings the applicant has instituted in any Australian court or tribunal, including proceedings instituted before the commencement of this section; and

    (c) discloses all relevant facts about the application, whether supporting or adverse to the application, that are known to the applicant.

    The wife’s affidavit does not comply with these requirements. Nonetheless, this is not necessarily fatal to her application. Section 102QF(1) states that (emphasis added):

    The court may make an order dismissing an application under section 102QE for leave to institute proceedings if it considers the affidavit does not substantially comply with subsection 102QE(3).

    From this section it is evident that the wife’s failure to comply with s 102QE(3) is not necessarily fatal to her application. If the application was to institute proceedings against another person, I would view this more stringently. However, as the wife’s present application pertains to a discrete issue, I am prepared to overlook the deficiencies in her affidavit material.

11. Under s 102QG(1) of the Act, before I can make an order under s 102QE granting leave to institute proceedings, I must:

    (a) order that the applicant serve:

    (i) the person against whom the applicant proposes to institute the proceedings; and

    (ii) any other person specified in the order;

    with a copy of the application and affidavit and a notice that the person is entitled to be heard on the application; and

    (b) give the applicant and each person described in subparagraph (a)(i) or (ii), on appearance, an opportunity to be heard at the hearing of the application.

12. While the application to the Court for leave to file is initially considered ex-parte, the issue cannot be finally determined without allowing the other party to the proceedings to be heard. The application that the wife wishes to make does not, however, involve the institution of proceedings against another person. She merely wishes to have her name removed from the Airport Watch List. Nonetheless, as it was the husband who initially sought and obtained the relevant order, he should be given an opportunity to be heard.

Conclusion

1. It should be noted that the wife has included in her affidavit the following paragraph, at [5] (emphasis original):

   To save the Honourable Court time and costs I take this opportunity to request that I be allowed, at a future date, to lodge an Application Contempt (this Honourable Court being already aware that [the husband] never disclosed ALL investments in his name. Specifically, he has an undisclosed overseas account with First National Bank in South Africa). This evidence was provided to the Honourable Court but I did not follow the correct procedures. I must go overseas to obtain the necessary subpoenae regarding that account and others that I believe were in existence at the commencement of this matter. I have to obtain the evidence to prove that [Mr. Daniels] (in collusion with his accountants N Firm] and his lawyer [W Lawyers, formerly Messrs L and M] had moved monies offshore and did not declare these assets …

2. For the avoidance of doubt, if the wife wishes to file a contempt application in the future, she will need to apply to do so. It is advisable that, should she elect to make such an application, she do so in compliance with s 102QE and

   
   

   r 11.05.

3. I make the order set out at the commencement of these reasons.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett delivered on 1 July 2015.

Legal Associate:

Date: 13 July 2015