Handley and Dantes

[2010] FamCA 1076

FAMILY COURT OF AUSTRALIA

HANDLEY & DANTES [2010] FamCA 1076

FAMILY LAW – CHILDREN – Where the father has sought to reopen the issue of the children’s day-to-day care – Where the father has failed to appear in court – A declaration that the father is a vexatious litigant pursuant to section 118 – Costs ordered

APPLICANT: Mr Handley

RESPONDENT: Ms Dantes

INDEPENDENT CHILDREN’S LAWYER: Ms Leisa Toomey, Solicitor

FILE NUMBER: BRC 10743 of 2009

DATE DELIVERED: 26 October 2010

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Barry J

HEARING DATE: 26 October 2010

REPRESENTATION

SOLICITOR FOR THE APPLICANT: There was no appearance by the Applicant Father

SOLICITOR FOR THE RESPONDENT: Ms Barbour, Solicitor of Anthony Black Family Law Services appearing for the Respondent Mother

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Shaw, Solicitor appearing as town agent for Ms Leisa Toomey, Solicitor of Schultz Toomey O’Brien Lawyers

Orders

IT IS ORDERED THAT:

1. The Father’s Applications in Form 1 filed 24 November 2009, 1 March 2010,

   
   

   6 July 2010 and 5 August 2010 to vary children’s orders, be dismissed.

2. The Father’s Contravention Application filed 17 September 2010 be dismissed.

3. Pursuant to the terms of section 118, the Father, MR HANDLEY, is restrained from filing any child related application in this Court exercising jurisdiction under the Family Law Act except by leave of a Judicial Officer.

4. The Independent Children’s Lawyer be discharged.

IT IS FURTHER ORDERED THAT:

1. The Father’s application for costs be dismissed.

2. The Father to pay the Mother’s legal costs relating to the Father’s Contravention Application filed 17 September 2010 fixed at $1,560.

3. The Father to pay the Mother’s legal costs of and incidental to the proceedings heard on 4 August 2010 and 20 August 2010 as assessed.

4. The Father pay the Mother’s legal costs in relation to costs incurred in relation to the Father’s Application in Form 1 filed 1 March 2010 and subsequent amendments thereof as assessed.

IT IS NOTED that publication of this judgment under the pseudonym Handley & Dantes is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 10743 of 2009

MR HANDLEY

Applicant

and

MS DANTES

Respondent

REASONS FOR JUDGMENT

1. I am satisfied the father is aware of the hearing on today’s date but has elected not to attend to prosecute his application.  He has filed an initiating application and various other amendments to that application.  The effect of those applications is he wishes to reopen the issue of the children’s day-to-day care.  That matter was litigated extensively before me in 2008.  It was a case where there was compelling evidence from Dr H that the father is likely to have sustained organic brain damage, and that accounts for his somewhat eccentric behaviour which was very much in evidence. 

2. My recollection is that the father’s lawyer, on hearing the father’s evidence at that stage, did not press for further cross-examination of witnesses and, in effect, agreed to abide by the order of the Court.  The matter was not finalised until orders were made in 2009.  I propose to dismiss the father’s attempts to re-litigate this matter to seek orders for week-about time on the basis that he is not here to prosecute his application.  He well knows that it is on, I am satisfied of that, and he has filed a notice of discontinuance of the initiating application.  I am not sure that I am prepared to draw the inference that I am asked to that that is a discontinuance of all the subsequent amended applications.  I have noted the Rice & Asplund argument has been raised.  I have dealt with this matter on an interim basis on 4 August this year and gave a decision on 20 August 2010. 

3. The father was having supervised time at a contact centre.  Subsequently, the centre indicated they would no longer offer their services because of the behaviour of the father.  For reasons given on 20 August 2010 I substituted an individual supervisor in the Y district.  Given the background of this matter, the prospect of reopening this litigation and making an order acceding to the father’s various applications is simply preposterous.I will dismiss the applications sought by the father to vary children’s orders, other than the order made on 20 August 2010.

4. I will accede to the application to make an order declaring the father a vexatious litigant.  I have read the detailed submissions produced by the legal representative for the mother.  I accept that since the orders were made in 2009, there have been numerous further applications lodged by the father.  There was a leave to appeal out of time dealt with by Warnick J which he dismissed with costs.  There is a history of the father not paying or complying with any previous orders.  There was an order of Coates FM on 1 March this year fixing costs at $2000.  As I understand it, they have not been paid. 

5. The father has prosecuted change to the orders made as recently as 2009 by filing four applications.  One was in November 2009, an amended application 1 March 2010, further amended applications 6 July 2010, further further amended application 5 August 2010. All of those applications are totally without merit, having regard to the lengthy history of this matter.  The mother has been put to totally unreasonable amounts of costs, in excess of $100,000.  There is little prospect that she will recover those costs. 

6. It is time that a declaration was made pursuant to section 118 of the legislation. I am satisfied the father’s activities, both in prosecuting a contravention application and the various attempts to seek an order for week-about time, may be appropriately described as both frivolous and vexatious, and I will be making an order in terms: That the father may not institute proceedings in any Court having jurisdiction under the legislation, without first obtaining the leave of a Judicial Officer giving permission for such proceedings to be filed.

7. I will make an order for costs.  In relation to the costs of the contravention.  The actual costs incurred were $1891.  I will make an order for actual costs because the costs – because the application was so totally without merit, I’ll add $400 for the costs of appearing today and making the submissions.

8. I will grant the mother the costs of and incidental to further appearances – first of all to the proceedings heard and determined on 4 August and 20 August this year.  The necessity for those proceedings was entirely in the hands of the father because of his behaviour at the contact centre.

9. I will also award the mother costs to be assessed in relation to costs incurred in relation to the four initiating applications.  In other words, the initiating application and all the three subsequent amendment documents. 

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Barry delivered on 26 October 2010.

Associate: 

Date:  26 October 2010