GRAHAM & KOVACS
[2016] FamCA 281
•29 April 2016
FAMILY COURT OF AUSTRALIA
| GRAHAM & KOVACS | [2016] FamCA 281 |
| FAMILY LAW – PRACTICE AND PROCEDURE – Abuse of process - vexatious proceeding orders pursuant to s102Q restraining father from instituting further proceedings without leave. FAMILY LAW - PRACTICE AND PROCEDURE – Adjournments – Contravention proceedings and applications – Application by father to give evidence by telephone – Where Court not persuaded that the father’s assertions are sufficient to justify him being permitted to appear by telephone. |
| Family Law Act 1975 (Cth) ss 102Q, 102QB |
| Buljubasic & Buljubasic [1999] FamCA 474; 1999 FLC 92-865 |
| APPLICANT: | Ms Graham |
| RESPONDENT: | Mr Kovacs |
| INDEPENDENT CHILDREN’S LAWYER: | Ms Gray |
| FILE NUMBER: | CSC | 762 | of | 2010 |
| DATE DELIVERED: | 29 April 2016 |
| PLACE DELIVERED: | Chambers |
| PLACE HEARD: | Cairns |
| JUDGMENT OF: | Tree J |
| HEARING DATE: | 11 February 2016 |
REPRESENTATION
| SOLICITORS FOR THE APPLICANT: | Sandra Sinclair Lawyers |
| THE RESPONDENT: | No appearance |
| SOLICITORS FOR THE INDEPENDENT CHILDREN'S LAWYER: | Susan Gray |
Orders
The father’s Application in a Case - Contravention filed 2 December 2015 is struck out.
To the extent is has not been previously determined, the father’s Application in a Case filed 2 December 2015 is struck out.
The mother’s Initiating Application filed 27 October 2015 is dismissed.
Otherwise all outstanding applications in the trial division be dismissed and the matter is removed from the list of active pending cases.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Graham & Kovacs 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 CAIRNS |
FILE NUMBER: CSC762/2010
| Ms Graham |
Applicant
And
| Mr Kovacs |
Respondent
REASONS FOR JUDGMENT
INTRODUCTION
On 29 October 2015, for reasons which I published on 21 October 2015, I made final parenting and property orders in the proceedings between the parties. Insofar as parenting orders were made, they provided that Ms Graham (“the mother”) have sole parental responsibility for the parties’ three children, and for the children to live with her. However those orders also provided for the children to spend unsupervised time with Mr Kovacs (“the father”) on two occasions every month and provided the opportunity, if an appropriate changeover venue or supervisor could be found, for them to spend special days with the father as well.
From those orders the father has brought perhaps as many as three appeals. On 2 December 2015 he also filed two further applications. The first was an Application in a Case which sought orders that the application be dealt with by a judge other than myself, together with an order staying the orders which I had made both on 29 October 2015 and earlier on 13 August 2015; the second was a Contravention Application which alleged that the mother had failed to comply in certain respects with my orders made on 29 October.
On 10 December 2015 I dismissed that part of the father’s Application in a Case which sought a stay of my 29 October 2015 orders. The balance of the Application in a Case, and the father’s Contravention Application, were then made returnable before me on 3 February 2016.
On 27 October 2015 – ie after my reasons for Judgment had been delivered, but prior to final orders being made – the mother filed a further Initiating Application which, in substance, sought orders under s 102QB of the Family Law Act restraining the father from instituting further proceedings without leave first obtained. Although the father has never filed a Response to that application, it was plain from his appearance before me on 10 December that he opposed the making of any such order. I therefore also set the mother’s application for an order under s 102QB down for hearing before me on 3 February 2016.
As I shall shortly detail, the father did not appear on 3 February 2016. However prior to then, the father had made contact with the Registry and asked to appear by telephone. He was advised that his personal attendance was required. Subsequently he provided the Registry with a doctor’s certificate which provided as follows:
I hereby certify that on Wednesday 3 February 2016 I examined [Mr Kovacs] who in my opinion is suffering from severe anxiety and is unable to attend court. It would be helpful to [Mr Kovacs] if some of the court interactions could be managed by telephone.
In light of the father’s correspondence with the Registry and the medical certificate, on 3 February 2016 I did not proceed to deal with the several outstanding applications, but rather adjourned them for hearing to 2:15pm on Thursday 11 February 2016 and further ordered:
If the father wishes to apply to adjourn the hearing of those applications on that day, then on or before 4:00pm Tuesday 9 February 2016 he must make file and serve any such application, together with any supporting affidavit material upon which he intends to rely upon at the hearing of the application for adjournment, and in the event that his affidavit material states that he is unfit to appear to seek the adjournment in person, but rather should do so by telephone, then leave will be given for him to appear by way of telephone on 11 February 2016 only to argue that application for an adjournment, but otherwise his personal attendance is required.
No application to adjourn was filed by the father, whether prior to 4:00pm Tuesday 9 February 2016 or at all, and accordingly the matter proceeded on 11 February 2016. The father did not then appear, and I dealt with the applications in his absence.
On that occasion I struck out that part of the father’s Application in a Case filed 2 December that had not been previously disposed of by me, and also struck out his Contravention Application. Further, I dismissed the mother’s Initiating Application filed 27 October 2015. I indicated that I would later publish my reasons for those orders. These are those reasons.
STRIKING OUT THE FATHER’S APPLICATIONS
In Buljubasic & Buljubasic [1999] FamCA 474; 1999 FLC 92-865, the Full Court discussed the situation where a litigant seeks an adjournment by direct communication with the court, or fails to appear at the listed time to seek an adjournment, and said:
It is ordinarily improper for litigants to seek to communicate with a trial Judge by sending a facsimile or other communication to the Court or the Registrar. A litigant seeking an adjournment or an extension of time in respect of a matter listed for hearing must either appear in Court on the listed date or send a representative to make proper application for relief.
This is not the first occasion that the father has made direct communication with the Registry by way of provision of a medical certificate not supported by any affidavit, as I noted in Graham & Kovacs(No3) [2015] FamCA 900. Moreover plainly contravention proceedings and recusal applications cannot effectively be prosecuted by telephone, particularly given the fact that the father is a self-represented litigant who has had the misfortune to suffer an acquired brain injury.
Moreover I note from the third Notice of Appeal filed by the father on 6 January 2016, that in paragraph 3 of the orders which he seeks in that appeal, he said, amongst a number of other matters:
I won’t be filing anything more before that man [ie myself] neither appearing before him.
There is no reason to think that the father was not aware of the hearing date of 11 February 2016, nor unaware that if he wished to adjourn that hearing, he needed to file an Application, and if medically justifiable, could appear to argue that adjournment by telephone. He failed to avail himself of that opportunity, and failed to appear again on 11 February 2016.
In those circumstances I determined that the appropriate response was to strike out the father’s applications. That of course does not adjudicate upon them on their merits, and would give him, should he ever see fit, the opportunity to seek to have them reinstated, or to file afresh should he deem that appropriate. However he simply cannot be permitted to have outstanding applications left unresolved, and otherwise keep the matter in the active pending cases list, if he is not prepared to prosecute the matters in a timely fashion.
For those reasons I made the orders in relation to the striking out of the father’s Application in a Case and Contravention Application both filed 2 December 2015.
DISMISSING THE MOTHER’S INITIATING APPLICATION
Introduction
The mother’s Application seeking orders under s 102QB against the father was supported by an affidavit sworn by the mother’s solicitor and filed 27 October 2015. At paragraphs 9 and 11 of that affidavit there is set forth in tabulated form a list of the father’s recent Contravention Applications and their fate, and detail of the father’s litigious activity since 30 September 2013. In subsequent paragraphs there is further reference to other applications filed by the father (although there is little detail provided), and in paragraph 19 a general assertion that the father “has filed applications in the Magistrates Court at F Town, including applications for Protection Orders, applications to set aside orders, applications to vary orders and an appeal against a Protection Order, where the mother was named as the complainant.”
It may fairly be said that the father has been an overly enthusiastic litigant, although that said, on occasions he has discontinued Contravention Applications, and on occasions, as I shall discuss later, he has in fact been successful in his applications.
Relevant statutory provisions and legal principles
Section 102QB of the Family Law Act relevantly provides as follows:
(1) This section applies if a court exercising jurisdiction in proceedings under this Act 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 vexatious proceedings in an Australian court or tribunal.
(2) The court may make any or all of the following orders:
(a) an order staying or dismissing all or part of any proceedings in the court already instituted by the person;
(b) an order prohibiting the person from instituting proceedings, or proceedings of a particular type, under this Act in a court having jurisdiction under this Act;
(c) any other order the court considers appropriate in relation to the person.
Note: Examples of an order under paragraph (c) are an order directing that the person may only file documents by mail, an order to give security for costs and an order for costs.
(6) For the purposes of subsection (1), the court may have regard to:
(a) proceedings instituted (or attempted to be instituted) or conducted in any Australian court or tribunal; and
(b) orders made by any Australian court or tribunal; and
(c) the person’s overall conduct in proceedings conducted in any Australian court or tribunal (including the person’s compliance with orders made by that court or tribunal);
including proceedings instituted (or attempted to be instituted) or conducted, and orders made, before the commencement of this section.”
The term “vexatious proceedings” is defined in s 102Q(1) in the following terms:
(1) In this Part:
…
vexatious proceedings includes:
(a) proceedings that are an abuse of the process of a court or tribunal; and
(b) proceedings instituted in a court or tribunal to harass or annoy, to cause delay or detriment, or for another wrongful purpose; and
(c) proceedings instituted or pursued in a court or tribunal without reasonable ground; and
(d) proceedings conducted in a court or tribunal in a way so as to harass or annoy, cause delay or detriment, or achieve another wrongful purpose.
It is to be noted that the s 102Q(1) definition is inclusive. The notion of vexation was discussed by the Full Court in Marsden & Winch [2013] FamCAFC 177 at paragraphs [150] to [153] as follows:
150. In Attorney-General v Wentworth Roden J said at [487]:
Meaning of “vexatious”
This is obviously a critical term, and can hardly be regarded as mere
surplusage. If, as I believe must be the case, “habitually and persistently and without any reasonable ground institutes vexatious legal proceedings”, means something different from “habitually and persistently and without any reasonable ground institutes legal proceedings”, then relevant vexation cannot be found simply in the habitual or persistent manner in which legal proceedings are instituted, in a lack of reasonable ground for their institution, or in a combination of those factors. Something more is required. Similarly, the use of the words “without any reasonable ground”, implies that it would be possible to institute vexatious legal proceedings, and indeed to do so habitually and persistently, with reasonable ground.151. His Honour continued:
A subjective element, such as malice, lack of bona fides, or ulterior
motive, seems to be both appropriate and necessary to give significance to the term “vexatious” within the context of s 84(1). It provides the required “something more” than is conveyed by the other words in the section, and it is consistent with legal proceedings instituted either with or without reasonable ground. If I were unaided by judicial authority, I would opt for such a construction here. I appreciate that, isolated from its context, the expression “vexatious legal proceedings” could mean “legal proceedings which vex”, irrespective of the motives of the person instituting them. A construction requiring a purely objective test might also be applied to the word when used in the expression “vexatious litigant”, which also appears in the section, although it would sit less happily there. The construction required for present purposes, however, is a construction within the context of the section as a whole; and for the reasons stated, I would, on first impression, opt for the inclusion of a subjective element.152. We observe that while Roden J was concerned with the meaning of these words within the context of a difference statute, that difference is not material to our consideration. We agree with his Honour’s construction of the word “vexatious” and, in particular his rejection of the meaning being “legal proceedings which vex”.
153. Roden J then concluded at [491] with the test which is set out at [81] of these reasons.
Relevantly [81] of Marsden (supra) provides:
[81]. His Honour then referred to the Oxford Dictionary definition of the word “to vex” which he summarised as being “to cause distress, whilst in its more modern meaning is to make somebody feel annoyed, frustrated, worried, irritated or unhappy” [163]. Having determined that the father’s desire to spend time with his daughter was not frivolous, his Honour turned his attention to whether the proceedings initiated by the father were vexatious. His Honour cited Attorney General (NSW) v Wentworth (1988) 14 NSWLR 481, at [491], where in the context of the then s 84 of the Supreme Court Act 1970 (NSW), Roden J set out a test for determining whether proceedings are vexatious. At [168], his Honour said:
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.
…
In Cannon & Acres [2014] FamCA 104 Benjamin J, having discussed the legislative history of Part XIB and recited the above passages, proceeded to also have regard to the decision of Davies J in Attorney General for the State of New South Wales v Gargan [2010] NSWSC 1192 which adopting the earlier decision of Perram J in Official Trustee in Bankruptcy & Gargan (No 2) [2009] FCA 398, as follows:
Principles relating to vexatious litigants
[2]A comprehensive explanation of what makes a proceeding vexatious is difficult to proffer for the boundary between the persistent and over-zealous on the one hand, and the vexatious on the other, may at times be indistinct. However, the following principles are, at least, well-established. First, the making of such an order is an extreme remedy depriving its object of recourse to the enforcement of the law which is every citizen’s ordinary right. It is, therefore, not lightly to be made.
[3]Secondly, the purpose of the order is not to impose condign punishment for past litigious misdeeds; it serves instead to shield both the public, whose individual members might be molested by vexatious proceedings, and the Court itself, whose limited resources and needs must be carefully managed and protected from the expense, burden and inconvenience of baseless and repetitious suits.
[4]Thirdly, as might naturally be expected, such a severe power is not enlivened by the mere single occurrence of a vexatious claim. To err is human and transient lapses of judgment, even serious ones, may be found in the most reasonable of places. Instead, the power to make the order is conditional upon the litigant having commenced not only a single vexatious proceeding but also upon having commenced similar such proceedings in this Court or in other Australian courts.
[5]Fourthly, the qualities of vexation to which O 21 is addressed are to be found, as the terms of r 1(1) show, in the commencement by the litigant of proceedings which lack reasonable grounds and where the litigant’s institution of such proceedings may fairly be said to be both habitual and persistent.
[6]Fifthly, whether a proceeding is instituted without reasonable grounds is a different question to, although not wholly disconnected from, the inquiry into a proceeding’s legal merits. The wheat, no doubt, must be separated from the chaff but in this area the question is whether what is before the Court contains any wheat at all. Although, often enough, no great guidance is obtained by exchanging one formula of words with another, it will be usually of some assistance, limited perhaps, to ask whether the issues brought to the Court for determination are manifestly hopeless or devoid of merit. It is, in that context, important to distinguish the difficult from the ridiculous and the unlikely from the hopeless.
[7]Sixthly, although the ways in which unreasonable grounds may manifest themselves are myriad, one form often to be found in the baggage of the vexatious is a failure, often a refusal, to understand the principles of finality of litigation which rescue court and litigant alike from a Samsara of past forensic encounters.
[8]Seventhly, it is the related quality of repetition which underpins, in part, a need for the institution of the proceedings to deserve the appellations habitual and persistent. The litigant’s conduct will be habitual where the commencement of proceedings occurs as a matter of course when appropriate conditions for their commencement are present as was explained by Roden J in Attorney-General v Wentworth (1988) 14 NSWLR 481at 492. That formulation may not wholly explain the litigant who commences proceedings on any occasion and without the presence of any conditions, whether appropriate or otherwise. In such cases, the idea of constant repetition driven by habit and symptomatic of an inability not to engage in the behaviour may be more useful. Persistence, on the other hand, generally suggests stubborn determination but, in the context of the vexatious, carries with it the capacity to endure failure beyond the point at which a rational person would abandon the field.
[9]Eighthly, each of these notions – the want of reasonable grounds, habitual institution and persistent institution – are to be gauged objectively. But this does not mean that a litigant’s own protestation as to his or her own mental state is irrelevant; frequently enough, the vexatious are betrayed out of their own mouths. Rather, the need for objective determination protects courts from the vexatious litigant who is genuinely, but misguidedly, persuaded as to the correctness of his or her own conduct.
[10]Ninthly, the power to make the order arises when proceedings commenced in the way described are found to exist. But the notion of a proceeding is a broad one including a substantive proceeding directed at the attainment of final relief and collateral applications within such a proceeding; further, it extends outside the proceeding itself and embraces appeals therefrom and applications which, whilst not made in the proceeding, are properly to be seen as collateral thereto – so much flows from the definition of proceeding in s 4 of the Federal Court of Australia Act 1976 (Cth).
[11]Tenthly, other proceedings commenced before bodies which are not courts, such as the Administrative Appeals Tribunal, are not directly pertinent to the existence of the power but may nevertheless throw light on the vexatious nature of proceedings before the Court; so too, the existence of a body of such administrative litigation may have relevance to the question of whether the Court’s power to make the order, once enlivened, should be exercised.
[13]Finally, once it is concluded that the Court’s power to prevent a litigant from commencing or pursuing proceedings has been enlivened, the considerations germane to the exercise of that power are unconfined. However, the factors which will be relevant are informed by the protective purpose which the order serves. Where a litigant displays insight into their previous litigious history this will, no doubt, be relevant for it will suggest – although not determine – a diminution in the risk posed to the public. On the other hand, the manner in which a litigant conducts herself in her affairs generally is also capable of throwing light on whether the commencement of further vexatious proceedings is likely. Those general affairs include the litigant’s defence to the proceedings by which the order restraining him is sought. Because of the protective nature of the jurisdiction it is also relevant to know the extent of the damage and inconvenience the litigant’s forays into the courts have caused, pecuniary or otherwise.
I agree that, in considering whether or not a proceeding is vexatious, even though it was in a slightly different legislative context, the analysis of Perram J is of great assistance, and I gratefully adopt it.
Has the father frequently instituted or conducted vexatious proceedings in Australian Courts or Tribunals
There can be little doubt that the father has frequently instituted proceedings against the mother, at least in the Family Court of Australia. For instance as noted at paragraph 9 of the mother’s solicitor’s affidavit, he has filed Contravention Proceedings on 2 April 2013, 20 December 2013, 22 May 2014, and 8 July 2014. Indeed since the mother’s solicitor’s affidavit was filed, he has filed further Contravention Proceedings on 2 December 2015 as well.
However the point which needs to be emphasised in relation to those, is that none of them have ever been judicially determined on their merits. As noted in paragraph 9 of the mother’s solicitor’s affidavit, the Contravention Application filed 22 May 2014 was discontinued by the father in June 2014, and the balance of the Contravention Applications have either been dismissed by consent, or dismissed after the father failed to appear to argue them at the time listed for their hearing.
In those circumstances it is very difficult to conclude that they were instituted or pursued without reasonable grounds, as their merits have never been assessed. Moreover, it appears likely that in fact in some, or perhaps all, of the occasions the subject of the contraventions, the particular non-compliance with the orders occurred, but the mother intended to assert that she had a reasonable excuse for the non-compliance. It is therefore difficult in the extreme to conclude that the proceedings were an abuse of process or instituted or conducted to harass, annoy, cause delay or detriment or for another wrongful purpose.
Whilst it is undoubtedly correct that the parties have a poisonous, conflictual relationship, it must also be remembered as I have outlined in earlier judgments in these proceedings, that the father does have an acquired brain injury which does affect his psychological and emotional functioning.
I am not satisfied that any of the father’s Contravention Proceedings were instituted or conducted vexatiously.
The balance of the applications relied upon by the mother are as detailed in the table at paragraph 11 of the mother’s solicitor’s affidavit. They include an Application in a Case which the father filed on 8 November 2013 seeking, in effect, a reversal of consent orders which he had entered into only two months before, which application was discontinued by the father in consequence of him in fact conceding that the orders made in October 2013 were binding upon him and should be complied with.
Next the father filed an Application on 27 February 2014 seeking a Recovery Order, which was dismissed on 26 May 2014. However on 9 September 2014 the father filed an Application in a Case seeking that his time with the children be reinstated, which order I made on 12 September 2014. Plainly that application was meritorious.
Next on 9 April 2015 the father filed an Application in a Case seeking an adjournment of the forthcoming resumed hearing so that an appeal which he had brought against the orders of Justice Kent listing the Contravention Applications for the final hearing could be determined in advance of that trial. On 13 April 2015 I dismissed that application. However in doing so, I noted that it was plain that the father was desirous of having the Contravention Applications heard in advance of the trial, no doubt because he perceived – incorrectly – that he would obtain some forensic advantage by so doing. I do not assess that his strategizing in that respect was an abuse of process or otherwise vexatious. It was a legitimate, albeit ill-conceived, strategy.
Next on 24 April 2015 the father again sought an adjournment of the forthcoming hearing on the grounds that he could not properly present his case. In fact I acceded to that application, although I only adjourned the hearing for a further 24 hours, at the conclusion of which the father again appeared to conduct his case. There was therefore a degree of merit in the Application filed by the father.
I am not satisfied that any of those proceedings were either instituted or conducted vexatiously. Particularly I am not persuaded that any of them were an abuse of process, or instituted without reasonable ground, or instituted or conducted to harass or annoy, to cause delay or detriment, or for another wrongful purpose. In so saying I am conscious that his applications for an adjournment were intended to delay the hearing, but it was not delay simplicter which he was seeking, but rather an opportunity to have his contravention applications determined before the principal parenting proceedings. Although poorly thought out, I am not persuaded that that was a wrongful purpose.
I am therefore not persuaded that the father has frequently instituted or conducted vexatious proceedings in Australian Courts or Tribunals.
Conclusion
For those reasons I declined to make an order under s 102QB, and dismissed the mother’s Initiating Application filed 27 October 2015.
I certify that the preceding thirty four (34) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Tree delivered on 29 April 2016.
Associate:
Date: 29 April 2016
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