Haykal and Krawiec (No 2)
[2015] FamCA 266
•16 April 2015
FAMILY COURT OF AUSTRALIA
| HAYKAL & KRAWIEC (NO 2) | [2015] FamCA 266 |
| FAMILY LAW – PRACTICE AND PROCEDURE – Where an order was made refusing the husband’s application for leave to institute an application for spousal maintenance against the wife – Where the husband seeks a stay of that order – Application for stay dismissed FAMILY LAW – VEXATIOUS PROCEEDING ORDER – Where the question arises as to whether or not a vexatious proceedings order pursuant to s 102Q should be made prohibiting the husband from instituting or conducting further proceedings against the wife in respect of financial matters under the Family Law Act 1975 (Cth), without leave – Whether the husband has instituted and conducted proceedings without reasonable cause and/or in a way to harass, annoy, or cause detriment to the wife – Where the husband has frequently instituted or conducted vexatious proceedings in Australian courts– Order made prohibiting the husband from commencing proceedings under the Act against the wife for financial matters, or any related proceedings |
| Family Law Act 1975 (Cth) Family Law Rules 2004 (Cth) |
| Agapis v Plumbers Licensing Board (No 2) [2014] FCA 1045 National Australia Bank Ltd v Freeman [2006] QSC 86 |
| APPLICANT: | Mr Haykal |
| RESPONDENT: | Ms Krawiec |
| FILE NUMBER: | SYC | 731 | of | 2009 |
| DATE DELIVERED: | 16 April 2015 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Watts J |
| HEARING DATE: | 30 March 2015 |
REPRESENTATION
| SOLICITOR FOR THE APPLICANT: | Litigant in person |
| SOLICITOR FOR THE RESPONDENT: | Litigant in person |
Orders
The husband’s application filed 16 March 2015 is dismissed.
Pursuant to s 102QB(2)(b) Family Law Act 1975 (Cth), the husband be prohibited from instituting proceedings of a type referred to in paragraph (c) (maintenance of one of the parties) and (ca) (proceedings between the parties with respect to property of the parties) and other proceedings in relation to completed proceedings of a kind referred to in paragraphs (c) and (ca) of the definition of “matrimonial cause” in ss 4(1) of the Act.
It is noted that the effect of making order 2 is to require the husband to seek leave to institute any further proceedings in relation to financial matters between himself and his former wife (see s 102QD(1)(a) and s 102QE(2) of the Act) and the husband must not serve a copy of any application for leave and the supporting affidavit on the wife unless the court so orders (s 102QE(4) and s 102QG(1) of the Act).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Haykal & Krawiec (No 2) 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 SYDNEY |
FILE NUMBER: SYC 731 of 2009
| Mr Haykal |
Applicant
And
| Ms Krawiec |
Respondent
REASONS FOR JUDGMENT
INTRODUCTION
The current hearing involved a consideration of the husband’s application to stay an order made 17 February 2015 refusing the husband leave pursuant to s 44(3) Family Law Act 1975 (Cth) (“the Act”) to institute spousal maintenance proceedings against the wife and whether or not a vexatious proceedings order be made against the husband.
THE HUSBAND’S STAY APPLICATION
On 16 March 2015 the husband filed an application that orders 1 and 2 made 17 February 2015 be stayed. The husband has filed an appeal in respect of those orders. The Grounds of Appeal are in the following terms:
1. The Application in a Case filed by the husband on 24 November 2014 be dismissed.
2. It is noted that the effect of this order is that the husband’s application filed 30 July 2014 for leave pursuant to s 44(3) Family Law Act (Cth) (“the Act”) to bring spousal maintenance proceedings against the wife is dismissed.
The husband relies upon the Notice of Appeal filed 11 March 2015, his affidavit filed 16 March 2015, and documents which he handed up that became Exhibit 44.
Applicable law
In Jackson & Balen [2009] FamCAFC 131 the Full Court said at [28]:
The principles to be applied in hearing a stay application pending an appeal are well settled (see Federal Commissioner of Taxation v Myer Emporium Ltd [No.1] (1986) 160 CLR 220 at 222; Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685; Jennings Construction Ltd v Burgundy RoyaleInvestments Pty Ltd (1986) 161 CLR 681). Those authorities stress the discretionary nature of the application which should be determined on its merits. Principles relevant to this matter include the following:
·the onus to establish a proper basis for the stay is on the applicant for the stay. However it is not necessary for the applicant to demonstrate any “special” or “exceptional” circumstances;
·a person who has obtained a judgment is entitled to the benefit of that judgment;
·a person who has obtained a judgment is entitled to presume the judgment is correct;
·the mere filing of an appeal is insufficient to grant a stay;
·the application must be bona fides;
·a stay may be granted on terms that are fair to all parties - this may involve a court weighing the balance of convenience and the competing rights of the parties;
·a weighing of the risk that an appeal may be rendered nugatory if a stay is not granted – this will be a substantial factor in determining whether it will be appropriate to grant a stay;
·some preliminary assessment of the strength of the proposed appeal - whether the appellant has an arguable case.
Discussion
The onus is on the husband to establish a proper basis for the stay. The wife is entitled to maintain the order that she has, dismissing the husband’s application for leave to bring a spousal maintenance application against her, and she is entitled to presume that the judgment is correct. The mere filing of the appeal by the husband is insufficient to grant a stay.
A refusal to grant the stay does not render the husband’s appeal nugatory. If the husband’s appeal is successful, the Full Court will either grant the husband leave to make an application for spousal maintenance against the wife or remit that matter for rehearing before another judge. A refusal to stay the order dismissing the husband’s application for leave does not place him in any different position, save for one matter. The husband during oral submissions indicated that he did not want the order dismissing his application for leave to bring a spousal maintenance application to count against him when the court subsequently considered making a vexatious proceedings order against him. That is not a proper basis upon which a stay should be granted. An order for a stay does not make the order refusing leave under s 44(3) of the Act a nullity. The stay order has the effect of suspending that order until the appeal is determined. If the husband’s appeal to the Full Court in respect of the order dismissing his application for leave under s 44(3) of the Act is successful, any order granting that leave to bring spousal maintenance proceedings against the wife would also need to grant leave pursuant to s 102QE(3) of the Act if the vexatious proceedings order has been made. Until the husband is successful in appealing the order refusing him leave under s 44(3), the wife is entitled to rely upon the husband’s unsuccessful application when the court is considering making a vexatious proceedings order against the husband, but on the basis that the husband has not yet exhausted his appeal rights in relation to that order.
In considering the husband’s s 44(3) application, the court concluded, on the then available evidence, amongst other things:
7.1.The husband’s evidence about his lack of capacity to adequately support himself was weak;
7.2.The husband would not be able to establish that the wife is reasonably able to support him;
7.3.There was an absence of any adequate explanation by the husband for the delay in bringing the application for spousal maintenance or an application for leave to commence spousal maintenance proceedings out of time;
7.4.There was prejudice to the wife in allowing the application and a desirability for finalising the litigation given the terms of s 81 of the Act.
A preliminary assessment of the strength of the husband’s appeal is that it is weak.
The husband has intimated that he wishes to seek the Full Court’s leave to adduce evidence to support his contention that he is “Unable [sic] to find any work and cant”. In oral submissions, the husband made reference to him never wanting to be a painter, having a dream for a coffee shop and having over $85,000 in funds in respect of which the wife “did not earn one dollar”. The husband also seemingly wishes to again ventilate before the Full Court his assertion that the wife has never made full and frank financial disclosure to him about the history of her financial circumstances.
The husband has failed to establish that a weighing of the balance of convenience and the competing rights of the parties would lead to a conclusion that a stay should be granted. I dismiss the application by the husband for a stay.
VEXATIOUS PROCEEDINGS
The question arises as to whether or not a vexatious proceedings order should be made preventing the husband from instituting or conducting further proceedings against the wife in respect of financial matters under the Act, without leave.
On 17 February 2015 I published reasons for judgment in respect of an application made by the wife at [62] of her affidavit filed 4 November 2014, in which the wife seeks that the court, upon its own initiative, make a vexatious proceedings order against the husband.
It is convenient that I set out the relevant paragraphs from those reasons:
59. In s 102Q(1) of the Act, “vexatious proceedings” includes:
(c) proceedings instituted or pursued in a court or tribunal without reasonable ground;
60. Section 102QB(1)(a) provides that a vexatious proceedings order can be made if the court is satisfied:
(a) a person has frequently instituted or conducted vexatious proceedings in Australian courts or tribunals;
61. Section 102QB(2)(b) provides the court can make the following order:
(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;
62. Section 102QB(3) of the Act provides that a court may make a vexatious proceedings order on its own initiative. The wife has invited the court to do so.
63. Both parties have spent large sums on legal fees. The husband’s estimate is that combined, the parties have spent $1.3 million in legal fees (him paying $600,000 and the wife paying $700,000). The wife’s actual evidence is that she has expended in the order of $450,000 on legal fees between September 2011 and October 2014.
64. In his judgment (at [18]), Judge Raphael endorsed a submission that the husband since February 2009 had filed 27 applications, 30 affidavits and 29 subpoenas, including three s 79A applications.
65. Page 50 of the wife’s affidavit sets out the extensive number of documents and applications that have been filed through the Commonwealth portal in the proceedings between the parties in this court. The husband had been legally represented until March 2013.
66. The husband indicated from the bar table that when he was ultimately discharged from his bankruptcy, he believed that he would again be at liberty to file a fourth s 79A application.
67. The husband at [24] of his affidavit filed 30 July 2014 says:
... neither the respondent Nor the trustee will be able to stop my court proceedings which are on foot in every court that is, i will do every thing under the law to make this happen, this is my lively hood and i wont allow no one by the law [errors in the original]
68. At [26], the husband calls for proper discovery. The tenure of what the husband has written in his affidavit would indicate that he does not have any intention of ceasing to file further applications.
69. These proceedings were presented in a busy duty list. There was not adequate time on that day for me to properly consider all the material that each party had filed and I reserved my decision in relation to the question of whether or not the husband was granted leave to bring spousal maintenance proceedings.
70. Prima facie, it would seem this application, the husband’s parenting application before Murphy J, and the second and third s 79A applications, were all brought without reasonable grounds and that those proceedings consequently could be described as “vexatious proceedings” (see s 102Q(1), definition (c)). If that is correct, the provisions of s 102QB(1)(a) and s 102QB(2)(b) have been attracted.
71. Section 102QB(4) of the Act requires the husband to be given the right to be heard.
72. The matter is to be listed on 30 March 2015 before me for the husband to have an opportunity to be heard as to why the following order should not be made pursuant to s 102QB(2)(b) of the Act:
The husband be prohibited from instituting proceedings of a type referred to in paragraph (c) (maintenance of one of the parties) and (ca) (proceedings between the parties with respect to property of the parties) and other proceedings in relation to completed proceedings of a kind referred to in paragraphs (c) and (ca) of the definition of “matrimonial cause” in ss 4(1) of the Act.
73. I note that the effect of making that order would be to require the husband to seek leave to institute any further proceedings in relation to financial matters between himself and his former wife (see s 102QE(2) of the Act).
On 17 February 2015 I made the following orders:
3. The matter is to be listed on 30 March 2015 at 10.30am before Watts J for the husband to have an opportunity to be heard as to why the following order should not be made pursuant to s 102QB(2)(b) of the Act:
The husband be prohibited from instituting proceedings of a type referred to in paragraph (c) (maintenance of one of the parties) and (ca) (proceedings between the parties with respect to property of the parties) and other proceedings in relation to completed proceedings of a kind referred to in paragraphs (c) and (ca) of the definition of “matrimonial cause” in ss 4(1) of the Act.
4. I note that the effect of making the order proposed in order 3 would be to require the husband to seek leave to institute any future proceedings in relation to financial matters between himself and his former wife (see s 102QE(3) of the Act).
5. In the event the husband opposes an order being made pursuant to s 102QB(2)(b) of the Act, the husband file and serve any evidence upon which he seeks to rely by 9 March 2015.
6. The wife file and serve any evidence in reply by 23 March 2015.
Documents relied upon
The wife filed her affidavit in relation to these proceedings on 23 March 2015 but it was not in reply to anything the husband had yet filed.
The husband filed his affidavit out of time (on 24 March 2015). He says this was because he has been under tremendous stress in respect to a final parenting hearing which is set down in August 2015. He says he is also suffering from lower back pain. During his oral submissions, the husband indicated that he called on the whole file, including all material produced under subpoenas, all applications, all his affidavits, and all the wife’s affidavits to be read. The husband then said somebody should point out to him what is vexatious in that material.
The evidence upon which I proceed is that contained in the affidavits filed in respect of this application by the husband on 24 March 2015 and the wife on 23 March 2015. In addition to these judgments annexed to the wife’s affidavit exhibited in evidence were:
16.1.The judgment of Murphy J in respect of an indemnity costs order he made against the husband on 31 August 2012 (Exhibit 45);
16.2.The reasons for judgment of the Full Court of 19 March 2013 (Exhibit 46);
16.3.Reasons of the High Court refusing the husband’s special leave application on 10 December 2014 (Exhibit 47).
I also rely upon [59] to [73] of my reasons dated 17 February 2015 set out above.
The statutory basis for a Vexatious Proceedings Order
Section 102QB(1)(a) of the Act provides a vexatious proceedings order may be made if:
(a) a person has frequently instituted or conducted vexatious proceedings in Australian courts or tribunals
What does “frequently” mean?
Before the introduction of the vexatious proceedings amendments[1] to the Act (Part XIB) the test for vexatious proceedings required the institution and conducting of proceedings “habitually and persistently”.
[1] Access to Justice (Federal Jurisdiction) Amendment Act 2012 (No. 186 of 2012)
Section 102QB(1)(a) of the Act sets the bar lower by using the word “frequently”. This is deliberate.
The Explanatory Memorandum states at [210]:
The threshold that will need to be met under paragraph 102QB(1)(a) is that a person has instituted or conducted vexatious proceedings in Australian courts and tribunals `frequently'. Clause 5 of the Standing Committee of Attorneys-General vexatious proceedings model law provides a choice between this `frequency' test and a test that requires a court to be satisfied that a person has `habitually and persistently' instituted and conducted vexatious proceedings, which was the traditional test.
In National Australia Bank Ltd v Freeman [2006] QSC 86 the court said the expression “habitually and persistently” implies more than “frequently”; “habitually” suggests that the institution of a proceeding occurs as a matter of course, or almost automatically, when the appropriate conditions (whatever they may be) exist; “persistently” suggests determination, and continuing in the face of difficulty or opposition, with a degree of stubbornness.
In Attorney General in and for the State of NSW v Gargan [2010] NSW SC 1192, Davis J considered the meaning of the term ‘frequently’ and said:
7. …
(a) the test of “frequently” is a less demanding test than was required under s 84 Supreme Court Act 1970;
(b) the term “frequently” is a relative term and must be looked at in the context of the litigation being considered;
(c) the number of proceedings considered may be small if the proceedings are an attempt to re-litigate an issue already determined against the person;
(d) regard may be had to applications made by the person in proceedings commenced against that person;
(e) regard may be had to the way the person has behaved and conducted himself or herself in the proceedings before the Court;
(f) regard may be had to proceedings in any Australian court or tribunal;
(g) regard may be had to the findings and result in the proceedings under consideration.
In Agapis v Plumbers Licensing Board (No 2) [2014] FCA 1045, Gilmour J agreed that the term “frequently” is a relative term and must be looked at in the context of the litigation being considered. The court may find that a person has instituted or conducted vexatious proceedings frequently even though the number of proceedings may be quite small, such as where the proceedings are an attempt to re-litigate an issue already determined against the person.
Benjamin J in Cannon and Acres [2014] FamCA 104 agreed that the term “frequently” was a relative term was and is to be considered in the context of the facts of an individual case.
What does “proceedings” mean?
“Proceedings” naturally means applications for final orders instituted separately over time. However, in the context of s 102QB(1)(a) of the Act, the word “proceedings” has a wider meaning. “Proceedings” is defined under s 4 of the Act:
Proceedings means a proceeding in court, whether between parties or not, and includes cross proceedings or an incidental proceeding in the court of or in connexion with a proceeding. [emphasis added]
Justice Benjamin in Cannon and Acres correctly said at [492] that “proceeding [sic] can contain a number of parts which are in themselves proceedings”. An interim application is a “proceeding”. It is possible to frequently institute and conduct vexatious interim proceedings even though a final order is yet to be made in the substantive proceedings. Section 102QB(1) of the Act would allow an order to be made which had the effect of requiring a party to seek leave before any further interim applications or interim applications of a certain type are instituted.
In this context, Gilmour J in Agapis v Plumbers Licensing Board (No 2) also observed:
“Conducting” proceedings covers every step a party may take to further existing litigation: Singh v The Owners Strata Plan 11723 [2013] NSWSC 1595 at [42]
What are vexatious proceedings?
Section 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.
What order can be made?
Section 102QB(2) of the Act provides:
(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.
“Vexatious proceedings” instituted or conducted by the husband
In his oral submissions, the husband said that none of his applications have been vexatious and as mentioned, he challenged the court to nominate any that were.
The wife pointed to proceedings which fell within the definition contained in s 102Q(1)(c) (and these are those upon which I shall concentrate). In addition, the wife also submitted that many of the proceedings were instituted and conducted by the husband in a way so as to harass and annoy her or cause her detriment and were consequently vexatious proceedings under the definitions contained in s 102Q(1)(b) and (d) of the Act.
There has been litigation between the parties, primarily instigated and maintained by the husband over a six year period in the Family Court, the Federal Circuit Court (General Division), the Federal Court, the Supreme Court of New South Wales, the Full Court of the Family Court and the High Court.
The following paragraphs set out some of the applications and proceedings in which the parties have been involved.
On 11 February 2009 the wife filed an Initiating Application in the Federal Magistrates Court (as it then was) for parenting and property settlement orders.
On 3 March 2009 the husband filed a response seeking property and parenting orders.
On 17 July 2009 consent orders for property settlement were made in the Federal Magistrates Court which, amongst other things, required the wife to pay the husband the sum of $560,000.
On 5 November 2009 the husband filed his first s 79A application.
On 12 August 2010 the husband’s first s 79A application was resolved by the making of a new consent property settlement order which increased the amount the wife was to pay the husband to $725,000. The husband admits that he received over $700,000. His application for enforcement, based upon the assertion that he was not fully paid (an assertion denied by the wife) has subsequently been dismissed by consent on 17 May 2012.
After a four day hearing, on 11 February 2011, Walker FM delivered reasons for judgment and made final parenting orders in relation to the two children of the marriage who are currently aged 18 and 12 years old.
On 2 March 2011 the husband filed his second s 79A application.
In October 2011 the husband commenced proceedings to discharge or vary the final parenting orders made on 11 February 2011.
On 12 January 2012, Justice Johnston dismissed the husband’s application to review the Principal Registrar’s decision on 16 December 2011 permitting the wife to travel overseas for holidays with the children and his Honour ordered that the husband pay the wife’s costs.
On 13 January 2012 Johnston J dismissed the husband’s application for a stay of the orders of 12 January 2012 and made an order that the husband pay the wife’s costs of the stay application. Ultimately, the husband’s appeal to the Full Court from Johnston J’s orders were taken to have been abandoned (rule 22.13(2) Family Law Rules 2004 (Cth)).
On 14 February 2012 the husband’s application seeking to review a listing date given by a registrar was dismissed.
On 2 April 2012 the husband’s application seeking to stay the order of 14 February 2012 was dismissed.
On 17 May 2012 a consent order was made for the husband to withdraw all extant financial proceedings without an order as to costs and the husband’s second s 79A application was dismissed by consent. These orders were made at a court event when the husband was represented by senior counsel and by an experienced specialist family lawyer.
On 18 May 2015 Murphy J dismissed the husband’s application to reopen the parenting case (the husband’s “Rice & Asplund” application). In his reasons for judgment at [27], his Honour stated that the order sought by the husband in respect of parenting were virtually identical to those sought by him in proceedings before Walker FM who made final parenting orders after a full hearing. His Honour also found that the husband sought to re-agitate issues determined at trial and dealt with in a comprehensive and thoughtful manner by the Magistrate. In that matter, the husband had two “private investigators” carry out surveillance upon the wife for evidence he could bring to future proceedings. His Honour found that evidence to be quintessentially self-serving. It was also evidence which was already raised and discussed in the original proceedings. Murphy J found parts of the husband’s affidavit “troubling” in light of the findings made by Walker FM and the analysis undertaken by Dr Q. He stated that the husband had “not taken on board one single, solitary word that Dr Q has put in her report, nor taken on board one single, solitary word contained in the Federal Magistrate’s reasons.” Ultimately, his Honour found that there was no material change in circumstances to warrant the husband’s application proceeding.
On 24 July 2012 Coleman J granted the husband an extension of time to file an appeal against Murphy J’s order of 18 May 2012 in the husband’s Rice & Asplund application provided that the husband pay the wife outstanding costs and provide the wife’s security for costs of the appeal.
On 31 August 2012 Murphy J made an indemnity costs order in respect of the husband’s Rice & Asplund application. Murphy J commented that in a period of slightly more than 12 months since final parenting orders were made on 11 February 2011 the husband filed nine subpoenas in relation to children’s issues, ten applications and eleven affidavits. In his reasons, Murphy J stated that the reasons for finding there was no material change (in respect of the parenting proceedings) were obvious, and equally obvious was the attendant lack of merit in the husband’s application. His Honour further stated at [28] that passages from the husband’s affidavit, quoted in the reasons, gave significant foundation to the submission that the proceedings were “….bordering upon vexatious.” The husband failed to comply with orders made by Walker FM on 11 February 2011 directing the parties to attend family therapy. The husband also refused to comply with orders of Registrar McNamara made 14 November 2011 that he attend an intake event for the Child Responsive Program. His Honour accepted the wife’s argument that the husband’s material in the proceedings to reopen was “prolix and much of it unnecessary”.
On 19 October 2012 the husband filed an amended notice of appeal against the indemnity costs order made on 31 August 2012.
On 21 December 2012 a costs assessment order, quantifying Murphy J’s indemnity costs order, issued in favour of the wife against the husband in the sum of $71,668.
On 23 April 2013 the wife issued a bankruptcy notice against the husband based upon his failure to pay the costs assessment order.
On 5 March 2013 the husband filed a notice of discontinuance of the appeal against the orders of 18 May 2012 (Murphy J’s dismissal of the husband’s Rice & Asplund application).
On 19 March 2013 the Full Court dismissed the husband’s appeal against Murphy J’s indemnity costs order and ordered the costs of the appeal be paid by the husband to the wife from the security that the husband had lodged. This is the only benefit the wife has received from any costs order which has been made in her favour. In dismissing the appeal, the Full Court said:
“nothing which the appellant has raised… gives the slightest disquiet as to the correctness of His Honour’s decision.”
Further, it was found that the husband raised nothing which, if accepted, could constitute a reasonable challenge to that order and that nothing to which the court had been referred provided a basis for possible appellate intervention
On 2 July 2013 the husband filed his third s 79A application.
On 12 August 2013 the wife filed a creditors petition against the husband.
On 12 September 2013, filed an application to the High Court for special leave to appeal the orders of the Full Court of 19 March 2013.
On 19 September 2013 the husband filed an application seeking that the indemnity costs order be stayed pending the outcome of his special leave application to the High Court.
On 8 October 2013, the husband filed an application in an appeal seeking a stay of the Full Court’s orders of 19 March 2013 pending the outcome of his special leave application to the High Court.
The husband filed an amended application in an appeal on 16 October 2013 seeking to re-instate his appeal against the orders made by Murphy J on 18 May 2012 dismissing his application to reopen parenting proceedings (which he had discontinued on 5 March 2013).
On 18 November 2013 Justice Lindsay (Supreme Court of New South Wales) dismissed the husband’s application seeking to maintain a caveat that he had lodged upon the wife’s property and ordered the husband to remove the caveat and ordered that the husband pay the wife’s costs.
On 19 November 2013 Judge Raphael (Federal Circuit Court) reviewed the merits of the husband’s third s 79A application in the context of an application by the husband for an adjournment of his bankruptcy proceedings. Judge Raphael dismissed the husband’s application for an adjournment and made a sequestration order against the husband. Judge Raphael endorsed a submission that the husband’s third s 79A proceedings were yet another futile application by the husband which had no prospects of success.
On 4 December 2013 the Full Court heard the husband’s applications filed 19 September, 8 October and 16 October 2013. In essence, their Honours found that the husband’s appeal lacked any prospect of success. The court considered the proposed grounds of appeal and were satisfied that none of those grounds would be likely to be found to have merit.
On 5 December 2013 the husband appealed the sequestration order made 19 November 2013.
On 16 December 2013 the husband filed an application for a stay of the sequestration order.
On 5 February 2014 Justice Wigney (Federal Court) refused the stay application and reserved the wife’s costs.
As a result of what the wife says is a refusal by the youngest child to see her father at all, the wife commenced fresh parenting proceedings in February 2014 seeking to discharge and vary the parenting orders and those proceedings have now been set down for final hearing before Justice Johnston later this year.
On 12 March 2014 the High Court dismissed the husband’s application for special leave to appeal the orders of the Full Court delivered on 19 March 2013, which had dismissed the husband’s appeal against the indemnity costs order made by Murphy J on 31 August 2012. Bell and Gageler JJ noted that the application was almost five months out of time and provided that “Compliance with the Rules respecting time should not be dispensed with”. They also found that the “prolix grounds of appeal and written case do not disclose any arguable basis of challenge to the decision of the Full Court”.
On 25 June 2014 the Full Court of the Family Court dismissed the husband’s application to reinstate his appeal against Murphy J’s dismissal of his Rice & Asplund application and also dismissed the husband’s application for a stay of the Full Court’s order dismissing the appeal against Murphy J’s indemnity costs order.
On 30 June 2014 Justice Jagot (Federal Court, sitting as a single judge) considered a challenge by the husband to Judge Raphael’s decision on 19 November 2013 to refuse an adjournment. The husband also challenged the dismissal by the Federal Circuit Court of his application to set aside his bankruptcy notice. Her Honour found that she was not satisfied that “the correctness of the primary judge’s decision is attended by any doubt”. Her Honour also found that no error was asserted by the husband, nor was one apparent in the primary judge’s statement of the tests to be applied in the proceedings. Further, it was found that there was nothing in any of the husband’s submissions to suggest error, legal or otherwise, on the part of the primary judge. Her Honour dismissed the husband’s challenge. Her Honour also ordered that the husband pay the wife’s costs as agreed or taxed.
On 25 July 2014 Justice Johnston dismissed the husband’s application for a stay of procedural orders in the current pending parenting proceedings brought by the wife and dismissed the husband’s application that his Honour disqualify himself.
On 25 July 2014 the husband filed a special leave application in the High Court against Justice Jagot’s decision of 30 June 2014.
On 10 December 2014 the High Court refused the husband’s application for special leave to appeal the orders of Judge Raphael, relating to the sequestration order made, and of Jagot J, dismissing the husband’s application to set aside the bankruptcy notice. Their Honours concluded by saying “the entirety of the applicant’s application for special leave to this Court is, therefore, incompetent…”. They also provided that even if the application was not incompetent, there was “no basis upon which to doubt the correctness of the decision of the Federal Court”.
On 17 February 2015 the husband’s application to review a registrar’s decision refusing the husband leave to commence a spousal maintenance application was dismissed by Watts J. The husband has appealed that order. An order will be made dismissing the husband’s application for a stay of this order. The wife sought costs against the husband in that proceeding, but did not indicate what recoverable costs she had incurred as a litigant in person. It was determined that there would be little utility in making a costs order as the husband already owed substantial costs to the wife.
On 2 March 2015 the husband’s trustee in bankruptcy discontinued the husband’s third s 79A application. The registrar dismissed all outstanding financial proceedings.
On 12 March 2015 the Social Security Appeals Tribunal heard the husband’s review of his assessment of child support. I said at [38] of my reasons of 17 February 2015 that the husband did not have a liability to pay child support. That was based on a letter from the Child Support Agency provided in evidence by the wife. It appears there may be a current liability for child support (although it would not be very much) which is not being paid. The husband’s current child support assessment in respect of his 12 year old daughter is in the sum of $33.25 per month. The tribunal’s decision is reserved.
As indicated at [66] of my reasons of 17 February 2015 (set out above ), the husband indicated from the bar table that when he was ultimately discharged from his bankruptcy, he believed that he would again be at liberty to file a fourth s 79A application. The wife understands that the husband will be discharged from his bankruptcy in December 2015.
In her affidavit of 23 March 2015, the wife provides a table of the various proceedings which is more detailed than that set out above and calculates that the husband has filed:
79.1.Three applications pursuant to s 79A of the Family Law Act;
79.2.Thirty-seven applications in a case (including nine applications for review);
79.3.Five notices of appeal (including one amended notice of appeal);
79.4.Thirty-three subpoenas;
79.5.Forty-six affidavits (not including an additional twelve affidavits relating to service of documents);
79.6.Two applications for special leave to the High Court.
The wife says at [11] of her affidavit that 18 of the applications filed by the husband have been dismissed following determination by a judge or registrar, 6 applications were withdrawn or discontinued by consent, 2 notices of appeal were abandoned and one notice of appeal was discontinued.
The wife complains that throughout the proceedings, the husband has failed to comply with orders requiring him to file documents by a particular date and the documents I have reviewed amply support that contention.
Conclusion
Section 102QB(6) of the Act provides that when considering making a vexatious proceedings order, the court may have regard to proceedings instituted and conducted in an Australian court or tribunal (including proceedings instituted and conducted before the introduction of Part XIB of the Act) and the person’s overall conduct in those proceedings.
The husband submits that at no stage was he involved in proceedings which were vexatious. He asserts that the case against him for a vexatious proceedings order is “base less, unfounded and has no legs to stand on”. He further says that it was the wife’s tactics have failed in various courts and that he will not give up on protecting his children. He indicated he would “use every legal avenue available under the rule of law to protect [his] children and property rights”. The husband’s affidavit filed on 24 March 2014 is verbose, lengthy (about 30 pages) and mostly irrelevant. Most of what is set out is rambling narrative relating to his belief that he has been deceived by the wife. Most of the focus of the things the husband said on 30 March 2015 related to the injustice he felt arising from the current parenting arrangements. In that regard, I note that the wife has made an application that an order be made that the husband have no time with the younger child (the older child is 18 years old). The husband opposes that application and that matter is scheduled for a final hearing before Justice Johnston later in the year.
Turning to whether or not a vexatious proceedings order should be made against the husband in respect of financial matters, as the discussion above demonstrates, there have been multiple occasions where an Australian court has found that proceedings have been instituted or pursued by the husband without reasonable grounds. Often costs orders have been made against the husband in favour of the wife. Often the court has made comments to the effect that the husband’s application or appeal was without any apparent basis or merit. Such findings clearly attract the definition of vexatious proceedings contained in s 102Q(1)(c) of the Act.
In addition, the wife says, and I accept, that she experiences the litigation brought by the husband as “relentless”. She has found some of what the husband has filed as “highly offensive” and “scandalous”. She gives examples of the husband gratuitously referring to sexual activity between herself and Mr B, suggesting that she may “prostitute” herself and that she and Mr B are “morally corrupted people”. The wife says that she has experienced the communication from the husband as threatening and harassing. I note at [5] of my reasons of 17 February 2015 that in [15] of the husband’s affidavit of 30 July 2014 he wrote that the wife “has got blood on her hands”. There is other objectionable material in [24] to [27] of that affidavit.
The wife says, and I accept, that the bankruptcy proceedings were a long and exhausting process involving many court appearances, during which the husband sought information about the wife’s financial circumstances which had no relevance to the husband’s bankruptcy proceedings.
As already mentioned, the husband has indicated it is his intention to recommence financial proceedings in this court when his ‘bankruptcy finishes’ at the end of this year.
The husband, as a result of his bankruptcy, has avoided the responsibility of paying the indemnity costs order which was made by Murphy J and confirmed by the Full Court (with an application for special leave to the High Court refused). Realistically the wife has little hope of recovering any outstanding costs order that has been made against the husband. Consequently, the threat of a costs order provides no effective deterrent to the husband’s future filing of applications.
I recorded at [63] of my reasons of 17 February 2015 that the wife expended in the order of $450,000 on legal fees in a particular period. The wife, at [61] of her affidavit filed 23 March 2015, says since the Family Court proceedings commenced in February 2009, she has incurred over $700,000 in professional legal fees including the costs of counsel and other disbursements as a result of the numerous applications filed by the husband against her in Australian courts and tribunals. The wife has had to meet those fees by drawing from her salary and by drawing dividends from the retained profits previously held by her company. The wife now represents herself, as does the husband. The wife has the sole parental responsibility and care of both children of the marriage. The wife works full time. The husband does not pay any child support or financially contribute to the children.
The wife asserts that the proceedings instigated by the husband are designed to harass the wife with continuing litigation to disturb and interrupt her employment and reduce her ability to look after the children.
I find that, arising from my discussion of the history of the litigation in various courts, the husband has both instituted and conducted proceedings in a way to harass or annoy or cause detriment to the wife. Such a finding attracts the definition of vexatious proceedings contained in s 102Q(1)(b) and (d) of the Act.
I find that the husband has frequently instituted or conducted vexatious proceedings in Australian courts.
Should a vexatious proceedings order be made against the husband?
I find that a vexatious proceedings order in the terms foreshadowed in order 3 of 17 February 2015 should be made against the husband.
I note that a statutory consequence of the vexatious proceedings order which I make is that the husband may not institute further proceedings for financial matters, or any related proceedings against the wife without the leave of the court (ss 102QD(1)(a); ss 102QE(2) of the Act) and the husband must not serve a copy of any application for leave and the supporting affidavit on the wife unless the court so orders (s 102QE(4) and s102QG(1) of the Act).
I certify that the preceding ninety-four (94) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Watts delivered on 16 April 2015.
Associate:
Date: 16.4.2015
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