Grant & Aiden (No 2)

[2018] FamCA 304

FAMILY COURT OF AUSTRALIA

GRANT & AIDEN (NO. 2) [2018] FamCA 304

FAMILY LAW – PRACTICE AND PROCEDURE – Application by the father for a vexatious proceedings order pursuant to s 102QB of the Family Law Act 1975 (Cth) – where the mother has frequently instituted vexatious proceedings in this Court and other courts and tribunals – where the proceedings have a long history – final orders made prohibiting the mother from instituting proceedings without first being granted leave

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)

Cannon & Acres [2014] FamCA 104
Marsden & Winch (2013) FLC 93-560
Pencious & Searle [2017] FamCAFC 210
Potier v A-G(NSW) (2015) 89 NSWLR 284
Official Trustee in Bankruptcy v Gargan (No 2) [2009] FCA 398
Viavattene v Attorney-General (NSW) [2015] NSWCA 44

APPLICANT: Mr Grant

RESPONDENT: Ms Aiden

INDEPENDENT CHILDREN’S LAWYER: McKean Park Lawyers

FILE NUMBER: MLC 5094 of 2008

DATE DELIVERED: 10 May 2018

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Macmillan J

HEARING DATE: 15 November 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Marchetti

SOLICITOR FOR THE APPLICANT: Trapski Family Law

THE RESPONDENT: In person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Colla

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: McKean Park Lawyers

Orders

IT IS ORDERED THAT

1. Pursuant to s 102QB(2)(b) of the Family Law Act 1975 (Cth) (“the Act”) the respondent mother Ms Aiden, be prohibited from instituting proceedings with respect to the child V, born … 2006, and/or the applicant father, Mr Grant, under the Act in any court having jurisdiction under the Act without first having been granted leave to commence that proceeding pursuant to s 102QE of the Act.

2. The father’s oral application for a vexatious proceedings order be otherwise dismissed and removed from the list of cases awaiting hearing. 

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 Grant & Aiden 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 MELBOURNE

FILE NUMBER: MLC 5094 of 2008

Mr Grant

Applicant

And

Ms Aiden

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. This is a matter in which there has been a lengthy history of litigation. The final hearing before me proceeded over 11 days commencing in March 2017 and concluding in November 2017. It concerned the parenting arrangements for the child of the marriage who is now 11 years of age in circumstances where the parties had been separated for over 10 years. During the proceedings and the hearing itself the mother made many unsuccessful applications, most of which had the effect of delaying the final resolution of this matter and had they been successful would have almost inevitably delayed the resolution of the matter even further.

2. The matter was listed for a trial management hearing before me on 12 September 2016. On that date the mother opposed the matter being set down for a final hearing on the basis that she had filed an application for a review of the interim orders made by the Senior Registrar on 4 August 2016 which provided for the child to live with the father. Instead of proceeding to a final hearing as quickly as possible to finally determine parenting arrangements, the mother persisted with that application for a review of those interim orders, albeit on 6 October 2016 she withdrew that application for review. 

3. On 15 November 2017, the mother filed a Notice of Discontinuance and I made the orders sought by the father on an undefended basis. I reserved my reasons which were published on 16 March 2018.

4. On 15 November 2017 I granted the father leave to make an oral application pursuant to s 102QB of the Family Law Act 1975 (Cth) (“the Act”) for a vexatious proceedings order. The mother had by that time left the Court and being satisfied that on 29 August 2017 the father’s solicitor had advised the mother by email that he would be seeking a vexatious proceedings order at the conclusion of the substantive proceedings, I granted the father leave to make that application orally. However being also of the view that the mother should have the opportunity to respond to the father’s submissions in support of that application, I further ordered that the father and the Independent Children’s Lawyer file written submissions in support of that application and that the mother have the opportunity to respond to those submissions.

5. The father filed written submissions in support of his oral application on 6 December 2017. The Independent Children’s Lawyer filed written submissions in support of a vexatious proceedings order being made on 20 December 2017. The mother filed her response to the father’s submissions on 20 December 2017 and a response to the Independent Children’s Lawyer’s submissions on 5 January 2018.

6. Having regard to the history of the proceedings, in particular the number of hearing days and the fact that the mother had withdrawn from the proceedings, the matter was dealt with on the basis of the written submissions of the parties and the Independent Children’s Lawyer.  

Legal Principles

1. A vexatious proceedings order is an order made pursuant to ss 102QB(1) of the Act which the Court can make if it is satisfied that:

   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.

   (emphasis added)         

2. Subsection 102QB(6) of the Act provides that for the purposes of determining whether a person has frequently instituted or conducted vexatious proceedings in Australian courts or tribunals or has acted in concert with another who is subject to a vexatious proceedings order or who similarly has frequently instituted or conducted vexatious proceedings in Australian courts or tribunals, the Court may have regard to the following:

   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.

3. Subsection 102Q(1) of the Act defines “vexatious proceedings” as including:

   (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.

4. This is not an exhaustive list and the Court can consider other matters that it considers relevant to the particular case in its determination as to whether  proceedings can be characterised as vexatious.

What is meant by the term “frequently”?

1. In the recent decision of Pencious & Searle [2017] FamCAFC 210 (“Pencious & Searle”) the Full Court of this Court looked at analogous vexatious proceedings provisions in other jurisdictions. Their Honours referred to the decision of  Potier v A-G(NSW) (2015) 89 NSWLR 284 (“Potier”) where Leeming J, in discussing what is meant by the term “frequently” in the context of vexatious proceedings, said as follows:

   [114] The power to make an order under the Vexatious Proceedings Act is conditioned upon a court being satisfied that the person has “frequently” instituted or conducted vexatious proceedings in Australia. The meaning of a word like “frequently” turns very much on its context; that is no different from many other protean words (such as “adversely affect” and “mistake”: cf Independent Commission Against Corruption (NSW) v Cunneen [2015] HCA 14; 89 ALJR 475 at [2] and [57] and CTM v The Queen [2008] HCA 25; 236 CLR 440 at [7]). It is not possible to articulate a precise test. However, the following two matters relevant to its construction for the purposes of this appeal may be noted. Each supports the conclusion that “frequently” is a relatively low threshold.

   [115] First, the change in language from the predecessor provision (s 84 of the Supreme Court Act) of “habitually and persistently” was deliberate, and plainly lowered the threshold condition.

   [116] Secondly, there are vexatious proceedings and vexatious proceedings. It is one thing to file urgent appeals or applications for judicial review which cause substantial disruption to courts and other litigants and participants in the legal system (for example, the adjournment of a trial), or to make serious allegations of fraud unfounded in the evidence. It is quite different to encounter some poorly known legal doctrine which denies reasonable grounds to the proceed­ings or renders them technically an abuse of process, or to file a series of applications for the annulment of decisions of magistrates (I have in mind the nine applications for annulment made by Mr Viavattene all listed and determined on the same day: see Viavattene v Attorney General (NSW) [2015] NSWCA 44 at [70]). That is to say, both the quality of the vexatiousness of a proceeding, and the nature of the proceeding itself, inform the assessment of frequency.

2. Leeming J concluded by reference to his decision in Viavattene v Attorney-General (NSW) [2015] NSWCA 44 at paragraph 117 that “[t]he issue posed by the statutory term “frequently” is not to be assessed merely by an arithmetic calculation”.

What should the Court have regard to?

1. In Official Trustee in Bankruptcy v Gargan (No 2) [2009] FCA 398 (“ Gargan”) (cited with approval by the Full Court in Pencious & Searle) Perram J discussed the general principles which apply to applications for vexatious proceedings orders as follows:

   [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 481 at 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.

   [12]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.

2. At paragraph 81 of the Full Court’s decision of Marsden & Winch (2013) FLC 93-560 (“Marsden & Winch”), their Honours referred to the decision of Attorney General (NSW) v Wentworth (1988) 14 NSWLR 481where at paragraph 168, Roden J defined vexatious proceedings as follows:

   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.

What orders can the Court make?

1. Subsection 102QB(2) of the Act provides that the Court can 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.

   (emphasis added)

Summary of the legislative pathway

1. In Cannon & Acres [2014] FamCA 104, Benjamin J at paragraph 440 set out the approach he adopted in determining whether to make a vexatious proceedings order as follows:

   i) In accordance with s 102QB(1), I will determine which proceedings constitute vexatious proceedings instituted or conducted in Australian courts or tribunals,

   ii) If there have been vexatious proceedings, I will then determine whether such proceedings have been conducted or instituted frequently. In that consideration, I am able to have regard to proceedings instituted (or attempted to be instituted) or conducted in any Australian court or tribunal, orders made by an Australian court or tribunal and the person’s overall conduct in such proceedings, including compliance with orders made by that court or tribunal (including proceedings instituted (or attempted to be instituted) or conducted before the commencement of Part XIB of the Act); and

   iii) If that threshold is met, I will then consider whether to exercise the discretion set out in s 102QB(2) of the Act and make a vexatious proceedings order. In considering whether to make a vexatious proceedings order I considered the scope and nature of the orders sought and made.

2. I propose to adopt a similar approach in this case.

Are any of the proceedings instituted or conducted by the mother vexatious?

1. In his summary of argument, counsel for the father identified various proceedings instituted by the mother which he submitted were vexatious. They included the following:

   a.   The mother’s application filed 19 August 2016 for a review of the orders made by Senior Registrar Fitzgibbon on 4 August 2016 which provided that until further order the child live with the father.  On 6 October 2016 the  mother withdrew her application for review. At paragraph 18 of Bennett J’s judgment, she rejected the submission that the “mother’s application [was] merely ill-conceived or overzealous” and found at paragraph 23 that the mother’s application for review “…was pursued without reasonable grounds” and declared that application vexatious.

   b.   On 24 March 2017 the Full Court dismissed the mother’s appeal from the orders made by Cronin J on 22 March 2016 that found she had contravened the orders made by Dessau J on 4 February 2011 and his order made 29 April 2016 which provided for the child to spend compensatory time with the father. This was in circumstances where the child had been in the father’s care since the recovery order made by his Honour on 29 April 2016 was executed on 6 June 2016 and the mother had withdrawn her application for review of the interim residence orders made by Senior Registrar [FitzGibbon]. The Full Court in its reasons observed that in circumstances where subsequent orders had substantially altered the orders the subject of the appeals and a final hearing was to occur in less than a month, there was no utility in the appeal. When the mother insisted pressing her appeals the Full Court found that “...both appeals [were] devoid of merit.” I am satisfied that in these circumstances this appeal and the mother’s decision to press her case were vexatious, being proceedings instituted or pursued without reasonable grounds. 

   c.   On 23 August 2017 during the final hearing of the parties’ competing  parenting applications, the mother filed an Application for Contempt in which she sought to rely on seven alleged contempts by the father. That application was heard by Austin J on 31 August 2017. On that date, his Honour summarily dismissed the mother’s application on the grounds that “it was entirely misconceived” and “wholly without merit.” His Honour further ordered that the mother pay the father’s costs of that application.

   Although counsel for the father did make an oral application at the conclusion of the hearing that the mother’s Application for Contempt be declared a vexatious proceeding, he did not pursue that application after his Honour asked him if he accepted it would be open to him to find that the mother had pursued her Application for Contempt because she genuinely believed the contents of that application.  His Honour did not, as submitted by the mother, make a finding that her Application for Contempt was not a vexatious proceeding.

   Perram J in Gargan said that when looking at the notions that define vexatiousness, that is “... the want of reasonable grounds, habitual institution and persistent institution” that they “are to be gauged objectively” (emphasis added).Although in my view when viewed objectively and in the context of the mother’s other applications, the mother’s grounds for pursuing this application were questionable, I do not propose to treat this application as a vexatious proceeding for the purposes of the application I am required to determine. 

   d.   On 23 August 2017 the mother also filed an Application in a Case in which she sought orders for the discharge of the Independent Children’s Lawyer, that the family report writer’s report and the report of the single expert witness [Dr Z] be struck out, that, although she had previously withdrawn her application for review of those orders, the interim parenting orders made by Senior Registrar Fitzgibbon on 4 August 2016 be discharged and a stay of the proceedings. Notwithstanding that it was her case that this application should be dealt with as a matter of priority and the final hearing should not continue until this application had been dealt with, when the application was listed for hearing on 31 August 2017 the mother sought an adjournment.  Austin J said in his reasons for [judgment] delivered that day that he “…found the mother’s complaint that she was unready...unconvincing” and although he granted her application for an adjournment, he only adjourned the matter until the following day. Having heard that application on 1 September 2017, Austin J delivered [judgment] and said that the mother’s application “...was not merely unsuccessful, it was utterly devoid of merit” such that it was not necessary for either counsel for the father or the Independent Children’s Lawyer to respond to the mother’s submissions. In these circumstances, I am satisfied that the mother instituted and pursued this application without having reasonable grounds for doing so and that it was vexatious.    

Applications made by the mother during the final hearing

1. It is not necessary, in my view, to set out in detail each and every application made by the mother either in this Court during the final hearing before me or in previous hearings or in other courts. There have been many (including unsuccessful) applications for Intervention Orders in Victoria or their equivalent in Queensland and abandoned appeals in the County Court. However, it is the case, as referred to by counsel for the father in his written submissions, that the final hearing before me was punctuated by applications made by the mother most of which, even if not intended to frustrate the final hearing at the very least, if successful, were likely to have had that effect.  They include the following applications:

   a.   On 8 March 2017 the mother filed an Application in a Case seeking orders that she be permitted to proceed on an undefended basis. The grounds for that application being that the father’s Amended Initiating Application did not comply with procedural requirements, as:

   ·The statement of truth was not re-signed and dated;

   ·The new amendments were not highlighted in red;

   ·Information that was no longer required was not crossed out; and

   ·The father was required to provide a certificate from a registered family dispute resolution practitioner or obtain an exemption from filing a certificate and he did not do either;

   The mother further relied upon the following matters:

   ·That the Independent Children’s Lawyer had  not complied with the orders of 12 October 2016 which required her to file any affidavit relied upon by 17 February 2017;

   ·The family report could not be relied upon because the Court file led the consultant to believe the child was recovered pursuant to orders made on 29 April 2016 (which the mother asserted was not the case) and lastly because;

   ·The family consultant had inspected documents produced by Victoria Police pursuant to subpoena but the Independent Children’s Lawyer had not served her two older children with a copy of the subpoena, in circumstances where those documents contained information about them.

   On 20 March 2017 I dismissed the mother’s application and I am satisfied that the purpose of that application was to delay, if not prevent the Court from hearing the father’s application for final parenting orders and that it was in those circumstances a vexatious proceeding. 

   b.   On 10 May 2017 I dismissed the mother’s application for me to disqualify myself and relisted the matter for a further three days commencing on 16 May 2017. At the commencement of the hearing on that date the mother advised that, notwithstanding she had not sought or been granted leave to do so, she had filed an Amended Response in which she sought, inter alia, orders that:

   ·    Her mother (the maternal grandmother) and her two adult sons be joined as parties to the proceedings;

   ·    The matter be adjourned to a further procedural hearing to afford the mother procedural fairness on the basis of what she asserted was new evidence; and

   ·    The matter be adjourned to enable the parties to attend family dispute resolution.

   I permitted the mother to make an oral application seeking orders in terms of that Amended Response. In dismissing the mother’s application I found that there was nothing to stop the parties attending family dispute resolution should they wish to do so, but that in circumstances where the parties had been engaged in litigation over many years, the matter should not be adjourned for that purpose.

   In so far as the mother asserted that the matter should be adjourned because of what she described as new evidence in the notes of Dr T (the child’s therapist) and that she needed to adduce further evidence and would have done so in her trial affidavit had she known of that evidence, I found that the mother had not identified any particular matters in Dr T’s notes, had not distinguished between her evidence and Dr T’s evidence and did not otherwise identify the other evidence she said needed to be adduced. This was all in the context of the mother’s insistence that Dr T was her witness and her objection to counsel for either the father or the Independent Children’s Lawyer speaking to Dr T and her having refused to give her consent to the family consultant speaking to Dr T.

   I also dismissed the mother’s application to join her mother and adult sons in circumstances where the proceedings had been on foot for a number of years and they had not sought to intervene in the proceedings, that they had not made the application on their own behalves and there was no indication as to what, if any, orders they might be seeking.

   I am similarly satisfied that the purpose of the mother’s Amended Response and her oral application was to delay if not preclude a hearing of the father’s application and that it was in those circumstances a vexatious proceeding. 

   c.   On 13 November 2017 the mother sought leave to file an Application in a Case in which she sought orders that:

   ·    The unsettled questions of law be answered before the matter proceeded further;

   ·    The father’s application be summarily dismissed;

   · The father be declared a vexatious litigant pursuant to s 102Q of the Act;

   ·    The mother be permitted to proceed with her application on an undefended basis; and

   ·    The father pay her costs.

   Having heard the parties’ submissions, I dismissed the mother’s application for leave to file her Application in a Case. I am satisfied that on what was day nine of the final hearing the mother did not have reasonable grounds for her application and that this was another attempt to delay or avoid the completion of the proceedings and was in those circumstances vexatious.

   d.   The mother then made an oral application on the same day for a stay of the proceedings pending the determination of her application for leave to appeal to the High Court against the orders of the Full Court dismissing her appeal against the orders of Cronin J made 22 March 2016 and 29 April 2016 and her appeal against the orders made by Austin J on 1 September 2017 dismissing her Application in a Case filed 23 August 2017 and his order that she pay the father’s costs of that application. It was her case that to continue the parenting proceedings pending the outcome of her appeals would be an abuse of process.

   On 14 November 2017 I found that there appeared to be little merit in the mother’s application for special leave or her appeal if she were to be granted leave to appeal. I also found that proceeding with the final hearing would not render that appeal nugatory, where the circumstances giving rise to the appeal had been largely overtaken by later events.

   In relation to the mother’s appeal against the orders of Austin J on 1 September 2017 I found that it was “...difficult to make sense of the mother’s grounds of appeal, or to glean any challenge of any substance to his Honour’s findings or the orders he made”.

   I concluded that the mother had not demonstrated that there had been an abuse of process, or that to continue the proceedings would be unfairly or unjustifiably oppressive, as to constitute an abuse of process and I dismissed the mother’s application. 

   In my ex tempore reasons delivered on 14 November 2017, I observed that it was difficult to understand why, in circumstances where the mother is seeking orders for the return of the child who she has not seen face to face for over 12 months (save and except at the appointments with the family consultant in January 2017) she would want to delay the final hearing. I am satisfied that this was yet another attempt by the mother to delay or frustrate the proceedings and that the mother’s oral application for a stay was vexatious.

   e.   Immediately after delivering my reasons and dismissing the mother’s oral application for a stay, the mother made a further oral application this one being for me to disqualify myself on the grounds of there being actual bias. This was the second application for disqualification made during the final hearing before me. The first application was also dismissed.

   The mother’s application was based upon me having referred to decisions of both the Full Court and Austin J in my reasons delivered earlier that day when I dismissed the mother’s oral application for a stay. I found that reference in my reasons for judgment to those judgments, in circumstances where the mother’s application for a stay was based upon the fact that she was appealing those specific decisions, did not meet the test of actual bias and did not demonstrate that I had not considered the matter or that I was not open to persuasion. 

   The other matter upon which the mother relied was that I had allegedly permitted the father to re-litigate the contravention applications previously determined by Cronin J in 2016 by allowing her to be cross-examined about those contraventions. I found that to allow cross-examination in relation to previous contraventions would not impact in any way upon the outcome of those previous applications and was not a re-litigation of the matter, as the mother described it.

   As I had previously observed that the mother might not understand the distinction between actual bias and apprehended bias, I also considered apprehended bias and found that the mother had similarly not demonstrated that a fair minded lay observer would apprehend that I might not bring an impartial and unprejudiced mind to the proceedings based upon the matters upon which she had based her application.

   I am satisfied that the mother made this application without reasonable grounds for doing so, that it was another attempt to delay or frustrate the determination of the father’s application for final parenting orders and that in these circumstances it was vexatious.

   f.   After I dismissed the mother’s application that I disqualify myself, she then said that she wished to obtain legal representation and again sought an adjournment of the final hearing to enable her to do so. This was in circumstances where the mother had been representing herself since the beginning of the trial in March 2017, the father had already concluded his case and the mother was in the middle of cross examination on day 10 of the hearing. That application was also dismissed. I am satisfied that the mother’s application was a final desperate attempt to delay and frustrate the proceedings and that it was vexatious.

2. As observed by the family consultant Ms AA and as I found in my reasons delivered on 16 March 2018, the mother throughout the final hearing was focused on the process, rather than the substance of the case, in this case the child’s best interests. Although it may seem somewhat illogical for the mother to want to delay or avoid the final hearing in circumstances where she was seeking the return of the child to her care, I am satisfied that that is exactly what each of the applications she made during the hearing, to which I have referred, was intended to achieve. I am also satisfied that in each case these applications were instituted or pursued without there being reasonable grounds for doing so. Although any benefits the mother might achieve by making her various applications may not be clear, I am satisfied that the primary purpose of her applications was to delay or frustrate the Court’s determination of the parenting proceedings. 

3. I am also satisfied that the way in which the mother conducted her case generally was intended to cause delay and frustrate the proper conduct of the proceedings.  The mother’s failure to answer questions during cross-examination to which I have referred in my reasons delivered on 16 March 2018 was a clear example of this. 

Has the mother “frequently” instituted or conducted vexatious proceedings?

1. I have found that the mother has instituted vexatious proceedings on nine  occasions, six of those being during the final hearing before me and four of those being within a period of two days (13 and 14 November 2017). I have also found that the mother’s conduct during the final hearing was vexatious. I must also be satisfied that she has instituted and conducted vexatious proceedings “frequently”.

2. As previously referred to, Perram J said in Gargan that “it is the related quality of repetition which underpins, in part, a need for the institution to deserve the appellations habitual and persistent”. Although the test in this case is a less onerous one,  requiring a determination of whether vexatious proceedings have been frequently instituted or conducted, I am satisfied that this case has that quality of repetition referred to. Perram J further observed that persistence 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.” This is an apt description of the mother, who herself submitted in the course of her application made on 14 November 2017 that I should disqualify myself, that she “would like it noted that every application I have made in these proceedings has been dismissed”. Whilst her observation may have been correct, the reason for that lies in the way in which she conducted the proceedings. 

3. The mother made four applications over the course of two days (for leave to file an Application in a Case, for a stay of the proceedings,  an application for disqualification based upon what she said was actual bias, and an application to adjourn to obtain legal representation). I am satisfied that her purpose and the result she would have achieved if she had been successful, was for the proceedings to be either adjourned or abandoned.  These applications, which all seemed focused on the same outcome, were made back to back, that is when one application was dismissed, she would then make another.

4. Leaving aside the lack of reasonable grounds for her applications, it is the very fact that in each of the applications made by the mother during the final hearing she either sought an adjournment of that hearing or orders that would have, if successful, either lead to the adjournment or the abandonment of the hearing that has that repetitious quality of vexatious proceedings.

5. In all of the circumstances, I am satisfied that the mother has “frequently” instituted vexatious proceedings and that the father has met the test he is required to meet.  

Exercise of Discretion

1. Having found that the mother has frequently instituted or conducted vexatious proceedings, the Court must then consider whether to exercise its discretion to make a vexatious proceedings order and what orders it should make in the exercise of that discretion. The father seeks an order that the mother be prohibited from instituting proceedings with respect to the child in any Court having jurisdiction under the Act, without first having been granted leave to commence that proceeding pursuant to s 102QE of the Act.

2. Although as Leeming JA said in Potier, whether or not a party has frequently instituted vexatious proceedings is not an arithmetical calculation, he also said that the proportion of the proceedings which are vexatious is highly relevant to the exercise of discretion. I have found that the mother has instituted vexatious proceedings on occasions, six of those in the course of the final hearing before me and four in the last two days of the hearing.

3. As Perram J highlighted in Gargan one of the ways unreasonable grounds can manifest is by a “failure, often a refusal, to understand the principles of finality of litigation.” In this case the mother had both her appeal to the Full Court of this Court against the orders made by Cronin J on 22 March 2016 and 29 April 2016 and her application for leave to appeal to the High Court against the orders of the Full Court dismissed.  The mother has also taken up significant Court time and resources with repetitious applications which I am satisfied were intended to prevent the Court hearing and determining the father’s application for final parenting orders.  I am satisfied that the mother is unable to accept the finality of orders this Court has made, that she is unlikely to do so in the future and it is likely in these circumstances that she will initiate further proceedings notwithstanding that those final parenting orders were made after she withdrew from the proceedings. 

4. The mother has also had a history of non-compliance with orders of this Court and has been found to have contravened previous orders of this Court on a number of occasions.  The genesis of the proceedings listed for final hearing before me was the father’s Amended Contravention Application filed 22 February 2016 in which he alleged and Cronin J found, that the mother had failed to make the child available to spend time with him on 10 occasions. On 18 March 2016 Cronin J also found in the course of the hearing before him that the mother had unilaterally relocated the child’s residence to Queensland in March 2016 without the knowledge or consent of the father. On 22 March 2016 the mother was ordered to return the child to Victoria. A further recovery order was made on 29 April 2016 requiring the child to be returned to the father in Melbourne. On 6 June 2016 after the mother failed to return the child to Victoria as ordered, the Australian Federal Police executed the recovery order made by Cronin J and collected the child from school in Queensland and delivered her to the father’s care where she has remained.  

5. The mother has also failed to pay costs when ordered to do so and asserts that she has been unemployed for some years and is impecunious.  I am satisfied that in these circumstances, orders for costs against the mother are unlikely to protect the father from further unmeritorious applications by the mother.

6. I am also satisfied that I should exercise my discretion to protect the child from the possibility of ongoing litigation initiated by the mother as a result of her inability to accept the finality of the Court’s orders. The child was an infant when the proceedings commenced and is now 11 years old. She deserves some finality and it is wholly undesirable that for the majority of her life, her parents have been embroiled in litigation and that she has been exposed to their dispute.  This is epitomised by the fact that the child had to be collected from school in June 2016 by the Australian Federal Police and that is likely to have been a somewhat traumatic experience for her.

7. I am satisfied that an order in the terms the father seeks will provide him and the child with some protection from the mother’s unmeritorious applications and the cost of ongoing litigation, in circumstances where the Court has now made final parenting orders.

8. The Court has limited resources and I am also satisfied that the order the father seeks will not only protect him and the child from the mother’s unmeritorious applications, but will also go some way to ensuring that the Court’s time and resources are not taken up by applications which lack merit or that are brought for some other purpose.

9. In all of the circumstances, I am satisfied that this is a case in which the Court should exercise its discretion and make a vexatious proceedings order as sought by the father.

The mother’s response to the application

1. Rather than addressing the substantive issue of whether or not the Court should make the vexatious proceedings order sought by the father, the mother instead sought orders dismissing paragraphs 9,13,14, 15 and 17 of my orders made 15 November 2017.  This is generally consistent with the way in which the mother conducted the proceedings before me and in my view does not suggest that the mother is likely to reflect upon the merits of any further applications she may wish to institute.

2. Paragraph 13 of those orders was the order granting the father leave to make an oral application and paragraphs 14 and 15 were the orders for the filing of written submissions. In paragraph 17 of those orders, I reserved the father’s oral application for a vexatious proceedings order to a date to be fixed for judgment.  Paragraph 9 of the order was an order that provided until further order, the mother be restrained from attending at the child’s school or her extracurricular activities without an order of the Court or prior written agreement. That order is not relevant to the determination of the father’s application for a vexatious proceedings order. 

1. The mother’s submissions were not easy to follow or comprehend. However doing the best I can, in summary her case appeared to be as follows:

   a)That she had not been afforded the right to be heard and on that basis had been denied natural justice;

   b)That there was an appearance of bias on the basis that the orders were made in her absence and she had not been afforded the right to be heard;

   c)That the father’s application for a vexatious proceedings order had been determined by Austin J on 31 August 2017 and that the father is estopped from renewing that application.

2. The main purpose of the Family Law Rules 2004 (Cth) (“the Rules”) is to ensure that each case is resolved in a just and timely manner at a cost to the parties and the Court that is reasonable in the circumstances of the particular case (r 1.04). Rule 11.01 of the Rules provides that the Court may exercise the powers set out in Table 11.1 to achieve that purpose. Those powers include making orders in the absence of a party, dealing with an application without an oral hearing and allowing an application to be made orally. The very purpose of the orders about which the mother now complains was to give her notice of the case she was required to meet and to give her the opportunity to make written submissions opposing that case if she chose to do so. This provided her with the necessary procedural fairness, whilst balancing the need to determine the matter in a timely manner at a cost to the parties that is reasonable in all of the circumstances of this case. There is, in these circumstances, no substance to the mother’s assertions that she has not been afforded procedural fairness and has been denied natural justice.

3. In so far as the mother submits that the orders were made without any notice to her, I am satisfied that the email sent to the mother by the father’s solicitor on 29 August 2017 put the mother on notice that “at the end of the substantive proceedings (that is, the end of the Final Hearing), we will also be seeking an order declaring the Mother a vexatious litigant.”  Even if that were not the case the mother has been given the opportunity to file written submissions in reply to the written submissions of both the father and the Independent Children’s Lawyer in support of the application for a vexatious proceedings order.

4. The mother’s submission that the father’s application for a vexatious proceedings order was heard and determined by Austin J on 31 August 2017 also has no merit. The application dealt with by his Honour that day was the mother’s Application for Contempt which was heard by his Honour and dismissed. The mother was also ordered to pay the father’s costs of that application. The father commenced, but ultimately did not pursue an application that the mother’s application be declared vexatious. The mother did, in her Application in a Case, which was heard and determined by Austin J on 1 September 2017, seek a vexatious proceedings order against the father. That application was dismissed and the mother was ordered to pay the father’s costs of that application.

5. The mother submitted that the father had “filed multiple failed applications before this Court for wrongful purposes spanning over a long period of time”. However, there is no extant application by the mother for a vexatious proceedings order against the father. Nor does this submission address the submissions made on behalf of the father in support of his application.

6. The mother also submitted that the father made his application for a vexatious proceedings order for the purposes of obtaining an order for costs against her both reserved costs and the costs of the final hearing, which she described as having been reserved. Whilst there may have been orders for reserved costs, the father, when he had the opportunity to do so, did not seek any orders for the payment of either the reserved costs or the costs of the final hearing by the mother.

7. The mother’s response to the submissions filed by the Independent Children’s Lawyer was similarly difficult to follow and of little assistance to the issues the Court is required to determine. 

8. In all of the circumstances I propose to accede to the father’s application.

I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Macmillan delivered on 10 May 2018.

Associate: 

Date:  10 May 2018