Herbert and Herbert (No 3)
[2020] FamCA 603
•23 July 2020
FAMILY COURT OF AUSTRALIA
| HERBERT & HERBERT (NO. 3) | [2020] FamCA 603 |
| FAMILY LAW – ORDERS – Contravention – Where the applicant has filed two Applications – Contravention and four Applications – Contempt alleging that the respondent has contravened interim and final parenting orders and that four of those alleged contraventions involve a flagrant challenge to the court’s authority such that the respondent is in contempt – Where the respondent seeks that the applications be summarily dismissed pursuant to s 45A – Where the applications are summarily dismissed on the basis that they have no reasonable prospect of success or are hopeless and doomed to fail. FAMILY LAW – PRACTICE AND PROCEDURE – Stay of final property orders – Where a final property adjustment order was made in March 2020 – Where the applicant wife seeks a stay of all save two of those final property orders pending appeal – Where one of the orders which the wife does not seek to be stayed requires the respondent husband to pay to her $263,690 – Where the husband will be prevented from borrowing funds to pay that sum if a stay, in the form sort by the wife, is granted – Where paragraphs 26 to 36 of the final property order will stayed pending the determination of the wife’s appeal. FAMILY LAW – PRACTICE AND PROCEDURE – Vexatious proceedings order – Where the applicant has frequently instituted and conducted vexatious contravention and contempt proceedings – Where the applicant will be prohibited from instituting contravention or contempt proceedings against the respondent without first obtaining leave of the court. FAMILY LAW – COSTS – Circumstances justifying order – Where the respondent seeks costs incurred responding to the applicant’s applications on a party and party basis – Where the circumstances justify an order for costs – Where the applicant is ordered to pay the respondent’s costs fixed in the sum of $3,936.23. |
| Family Law Act 1975 (Cth) s 45A, s 117, Pt XIB Evidence Act 1995 (Cth) Pt 3.2 |
| Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106 |
| APPLICANT: | Ms Herbert |
| RESPONDENT: | Mr Herbert |
| FILE NUMBER: | BRC | 4902 | of | 2017 |
| DATE DELIVERED: | 23 July 2020 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Forrest J |
| HEARING DATE: | 10 July 2020 |
REPRESENTATION
| SOLICITOR FOR THE APPLICANT: | Mr Horvath AP Hodgson & Associates |
| SOLICITOR FOR THE RESPONDENT: | Mr Rosen Rosen Lawyers |
Orders
That the following applications filed by the Applicant are summarily dismissed pursuant to s 45A(2) of the Family Law Act 1975 (Cth):
(i)Application - Contravention filed 25 October 2019;
(ii)Application - Contempt filed 22 January 2020;
(iii)Application - Contravention filed 6 May 2020;
(iv)Application - Contempt filed 6 May 2020 (re Contact);
(v)Application - Contempt filed 6 May 2020 (re Denigration);
(vi)Application - Contempt filed 3 June 2020.
That the Court being satisfied that the Applicant, Ms Herbert, has frequently instituted vexatious contravention and contempt proceedings in this Court against the Respondent, Mr Herbert, pursuant to s 102QB(2) of the Family Law Act 1975 (Cth), the Applicant, Ms Herbert, is prohibited from instituting contravention and/or contempt proceedings against the Respondent, Mr Herbert, under the Family Law Act 1975 (Cth) in a court having jurisdiction under the said Act.
That paragraphs 26 to 36 (inclusive) of the Orders made by Justice Forrest on 25 March 2020 are stayed pending determination of the Applicant’s appeal to the Full Court of this Court against those Orders.
That the Applicant, Ms Herbert, shall pay the costs of the Respondent, Mr Herbert, of and incidental to these applications fixed in the sum of $3,936.23 such sum to be offset against the amount the Respondent is to pay the Applicant pursuant to paragraph 34 of the Orders made 25 March 2020 or any such other amount the Respondent may be ordered to pay the Applicant in the event that her appeal against the Orders of 25 March 2020 is successful.
That the hearing listed before his Honour Justice Forrest for 4 August 2020 be vacated.
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 Herbert & Herbert 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 BRISBANE |
FILE NUMBER: BRC 4902 of 2017
| Ms Herbert |
Applicant
And
| Mr Herbert |
Respondent
REASONS FOR JUDGMENT
In late August 2018, I heard and determined competing contravention applications between the parties to this matter. I found that the mother had twice contravened interim parenting orders by not providing the children to spend time with the father. I found that the father had twice contravened the interim parenting order by discussing adult issues with the children and that he had failed to provide disclosure as particularly required by an interim procedural order.
On 7 September 2018, I varied the interim parenting orders and placed the two boys of the parties into the sole care of the father. I gave reasons for that decision at the time.
The matter went to trial before me in late July and early August of last year. I heard competing applications for parenting Orders and property adjustment Orders. I also heard two more contravention applications that had been filed by the mother against the father in the lead up to that trial. I determined that the father had no case to answer on the first count in the first application and a reasonable excuse for the contravention in the second count in the first application. I struck out the first count of the second application satisfied there was no case to answer. I dismissed the second count of the second application as well, satisfied that the father had not contravened as the mother had alleged.
After I had concluded the trial, I reserved my judgment but adjourned the property adjustment proceedings, effectively part heard, until November 2019 as there was an outstanding issue between the parties and the Australian Taxation Office that was going to be clarified by then. I made provision for the parties to file further evidence and to make more submissions in respect to that matter in November.
On 25 October 2019, the mother filed another contravention application against the father. It was given a return date before a Registrar in December. On 22 January, this year, the mother filed another application, this time alleging the father was in contempt of court for his contravention of a parenting order.
On 30 January, this year, I heard an application by the father for a recovery order in respect of the eldest boy, X. That day, I adjourned the application, part-heard, to 4 February 2020 and I listed the mother’s contravention application filed 25 October 2019 and her contempt application filed 22 January 2020 for mention at the conclusion of the hearing on 4 February.
On 5 February 2020, I made interim orders that 16 year old X could live with which ever parent he chose from time to time. I gave my reasons for that decision at the time. X had, in early January, left his father’s home of his own accord and gone back to live with his mother. Also on 5 February, I listed the mother’s outstanding contravention and contempt application for further mention again after I delivered my reserved final judgment in the parenting and property proceedings.
On 25 March 2020, I delivered that final judgment in the parenting and property proceedings and the contravention matters I had heard at the trial. I also ordered that the mother’s outstanding contravention and contempt application be mentioned on 6 May.
On 22 April 2020, the mother filed a Notice of Appeal, appealing my final parenting and property adjustment orders.
On 6 May 2020, I listed the mother’s contravention and contempt application for hearing on 4 August 2020 and I made an Order pursuant to s 102NA of the Family Law Act 1975 (Cth) (“the Act”) as the mother, who was unrepresented, was not permitted to cross-examine the father directly as there is an existing family violence protection Order in place. I listed the matter for mention again on Friday, 3 July to hear if the mother had obtained legal representation for the contravention and contempt applications.
On that same day, 6 May 2020, the mother filed three more applications. Two of those were applications in which she alleged the father was in contempt of court again for contravening orders. Those were listed to 4 August for hearing with the others. On 3 June 2020, the mother filed another two applications alleging the father was in contempt of court again for contravening orders. Those were listed for mention on 3 July.
On 4 June 2020, the mother filed an application seeking a stay of my property adjustment orders pending the outcome of her appeal against my final Orders. That was also listed for mention on 3 July.
Then, in late June, the father’s solicitors sent an application and supporting affidavit to the Court for listing consideration. In that application, the father was seeking to have all the mother’s applications determined to be vexatious and dismissed. It also sought orders for the mother to provide security for costs before she commences any more proceedings against the father and for a Registrar of the Court to sign documents in lieu of the mother in order to give effect to the property adjustment orders I had made. I listed that application for mention also on 3 July 2020.
3 July 2020
In preparation for the mention of all these matters on 3 July 2020, I read all of the applications and supporting affidavits filed by the parties. The mother had seven separate contravention and contempt applications to be dealt with as well as her stay application and the father had his application. Having formed some preliminary views about the prospects of success of the mother’s applications, I invited the mother’s solicitor who appeared for her on the day (the mother had been granted legal aid for his appearance) to make submissions as to why I should not summarily dismiss the mother’s applications pursuant to s 45A(2) of the Act.
Of course, that section of the Act empowers the Court to summarily dismiss applications if the Court is satisfied that the applicant has no reasonable prospects of successfully prosecuting the proceedings or part of the proceedings. The Court is empowered to take action under the section of its own initiative and does not need to be moved to do so by application of the other party (s 45A(7)). To have “no reasonable prospect of success” proceedings need not be “hopeless” or “bound to fail” (s 45A(3)). However, if they are hopeless and bound to fail it follows that they have no reasonable prospect of success. Additionally, the Court may dismiss all or part of proceedings at any stage if it is satisfied that the proceedings or part is frivolous, vexatious or an abuse of process (s 45A(4)).
After inviting the mother’s solicitor to make those submissions, I expressed some preliminary views about the prospects of success of the mother’s applications so that he could consider them and take instructions from the mother and give advice to her. I offered him the opportunity of adjourning the hearing of his submissions and any of the father’s solicitor to Friday, 10 July on which date I intended to hear the father’s interim application previously referred to, as well.
After taking some instructions from the mother, the mother’s solicitor informed the Court that the mother formally withdrew and discontinued one of her contempt applications filed on 3 June 2010. It was the one in which she alleged the father had been in contempt of the Court by not disclosing financial documents pursuant to a specified paragraph of my final property adjustment orders made on 25 March 2020. That particular Order provided for the mother to retain as hers absolutely all of her right, title and interest in her member benefit account with the parties’ self-managed superannuation fund. It did not oblige the father to disclose any financial documents. Her contempt application had no prospect of success. In fact, it was, I say respectfully, hopeless and bound to fail. It was the right decision to withdraw and discontinue it.
The mother’s solicitor informed the Court that the mother pressed the remaining applications and he would prepare submissions for the following week as to why they should not be summarily dismissed pursuant to s 45A(2) of the Act. I also pointed out, for the mother’s benefit in case there was any misunderstanding, that there was a real issue as to costs in this matter as the father was paying for private legal representation and would most likely make an application for costs to be paid by the mother if her applications were dismissed and his was successful. I also pointed out that as I had made a final property adjustment order that the father pay the mother in the order of $230,000 cash, that any costs order made against her would potentially be satisfied by simply setting it off against that amount to be paid to her.
Subsequent to adjourning the matter that day, I discovered that my previous thoughts about the prima facie prospects of the mother’s stay application were mistakenly based on the wrong Notice of Appeal filed by the mother. She had filed an earlier one against my interim parenting Orders and I could not see any appeal against property orders in it. Her later Notice of Appeal filed in April was brought to my attention in my chambers by my Associate and I saw in that the mother did appeal against the property orders I had made. Consequently, I caused both parties’ solicitors to be informed immediately that I would not consider summarily dismissing the mother’s stay application but rather would actually hear it on Friday, 10 July 2020 when hearing the other matters.
10 July 2020
At this hearing, again both parties were represented by solicitors and both solicitors had come prepared to present submissions for and against the respective applications, and, more particularly in respect to the mother’s solicitor, he had come prepared to make submissions as to why the mother’s six remaining contravention and contempt applications should not be summarily dismissed.
Mother’s Contravention/Contempt Applications
Application - Contravention filed 25 October 2019
The mother alleged that the father contravened an order, without reasonable excuse, at 8:00 am on 9 September 2019. Her statement of the alleged contravention is:
On 9 September 2019 X sent a text to my daughter Ms U and said “Oh true and everytime (sic) I try to have the day off he drags me out of bed and the other day he dragged me out of bed and I went to walk away cause he was just blabbering and he had his hand on my upper chest close to my neck and pinned me back against the wall multiple times”.
The primary Order the mother alleged the father contravened was paragraph 12 of the Orders of Registrar Spink made on 20 March 2018. It provided:
That neither parent is to physically discipline the children.
In her affidavit of evidence in support of the contravention application, the mother simply said that on 9 September 2019, her daughter Ms U received the message that is quoted above. The mother then said that the message is annexed to her affidavit. Annexed to the mother’s affidavit is a page that appears to be a copy of what purport to be text messages sent between two persons. The page has the name “X” at the top. It does not identify the persons who are said to be the authors of the messages, but the message the mother has referred to is at the bottom of the page. It follows a date and time entry that says “09 September, 5:21 pm”.
The evidence adduced by the mother is hearsay evidence. There are two pieces of hearsay evidence effectively included in the mother’s evidence. One is only included by implied assertion of the mother. It is that her daughter, Ms U, told her that she received a text message on her phone from her brother, X, and that the attached annexure is a copy of a screen shot of the message exchange between her and her brother. The second is the message, said to be the message from the boy, X. These are out of court, previous representations made by persons who are not witnesses in the proceedings.
Section 59 of Evidence Act 1995 (Cth) (“Evidence Act”) provides:
(1)Evidence of a previous representation made by a person is not admissible to prove the existence of a fact that it can reasonably be supposed that the person intended to assert by the representation.
I am satisfied that this provision means, prima facie, that the evidence of the previous representations made by Ms U (whether through the implied assertion of her mother or even if her mother had said “Ms U told me that she had received a text message from her brother”) and the evidence of the previous representation of the boy, X, constituted by the text he is said to have sent, is not admissible to prove the existence of the facts that it can reasonably be supposed that the person intended to assert by the representation.
If that evidence is all the mother relies upon and it is inadmissible then the contravention application is bound to fail. However, it is not as simple as that.
This contravention application is an application brought pursuant to the provisions of Div 13A of Pt VII of the Act. As such, the provisions of Div 12A of the Act apply as the proceedings are child-related proceedings wholly under Pt VII (s 69ZM(1)). Pursuant to s 69ZT(1) of the Act, Pt 3.2 of the Evidence Act does not apply to child-related proceedings, so the provision making hearsay evidence inadmissible does not apply to this particular application. This position is subject to the Court having the power to decide to apply it in certain circumstances. Those are if:
(a) the court is satisfied that the circumstances are exceptional; and
(b)the court has taken into account (in addition to any other matters the court thinks relevant):
(i)the importance of the evidence in the proceedings; and
(ii)the nature of the subject matter of the proceedings; and
(iii)the probative value of the evidence; and
(iv)the powers of the court (if any) to adjourn the hearing, to make another order or to give a direction in relation to the evidence.
In this instance, the solicitor for the father did not submit that the provision of the Evidence Act should be applied. In any event, even if it was, s 69ZV of the same Act saves the admissibility of evidence of a representation made by a child about a matter that is relevant to the welfare of a child where the Court otherwise decides to apply the law against hearsay. In such circumstances, at least the representation said to have been made by the child, X, is not inadmissible in the proceedings solely because of the law against hearsay, though the representations made by the young adult, Ms U, would be.
In all these circumstances, I am not persuaded that the provisions of Pt 3.2 of the Evidence Act should be applied to the proceedings constituted by this contravention application and will consider the previous representations by Ms U and X admissible. I am then empowered by s 69ZT(2) of the Act to give such weight (if any) as I think fit to that evidence. Frankly, because of the fact that these previous representations are included in the mother’s evidence simply through the implied assertion contained in her affidavit, that weight would not be much, all of that viewed on its own.
There is also the problem for the mother that she alleges that the contravention occurred at 8:00 am on 9 September 2019. On the evidence she has adduced, including the hearsay representations of her son and daughter, the Court could not be convinced at all that such contravention occurred at 8:00 am on 9 September. The text message said to be from X appears to have been received at 5:21 pm on 9 September 2019 and refers to something X said happened “the other day”.
However, the mother’s solicitor also referred to an affidavit of the father’s filed on 29 January 2020 in the recovery proceedings that led to the interim Order that X could live with whichever parent he wanted to. The solicitor said the mother would rely on a passage from that affidavit. He submitted that it constituted an admission by the father that he had “physically disciplined” the child as alleged by the mother. In that affidavit, the father deposed to the following:
3.On 11th September 2019 an incident occurred between the child, X Mr Herbert, and myself.
4.On that day I left for work at about 7.00 am, at that time X was still in bed. Sometime after I received a telephone call from my partner, Ms L, who said to me the following words or words to the effect “X does not want to go to school”.
5.I drove home and found that X was lying in bed. Both Ms L and I asked him to get up. X’s response was quite rude to both of us and used inappropriate language. X was also derogatory toward the other children in the house. Ms L and I explained to X that it was not the best way to manage his time for school. X had apparently decided that he did not want to go to school on that day because he had fallen behind on some of his assignments. However, he was not ill and this was not the first time that he had acted this way.
6.I instructed X to get out of bed, but X refused to get out of bed.
7.I then pulled X out of bed and got him to his feet. X kept pushing me away and trying to get back into his bed. I gave him his school uniform and told him to get dressed. However, X returned to his bed and laid down. I pulled him out of bed again and tried to stop him returning to his bed by holding him against the wall with my hand against his chest. However, it was becoming too stressful for everyone and subsequently I made a telephone call to the Queensland Police Service.
The mother’s solicitor referred particularly to paragraph 7 and said that the sentence:
I pulled him out of bed again and tried to stop him returning to his bed by holding him against the wall with my hand against his chest.
constituted the father’s admission and meant that the mother’s application had a reasonable prospect of success if allowed to be prosecuted.
It is not usual in contravention proceedings for applicants to rely on previous affidavits filed by respondents in different proceedings. Indeed, a respondent is not bound to give any evidence in response to the contravention application and the evidence relied on in support of it unless he or she decides to do so. That evidence can be given orally or by affidavit, and it can be given without notice.
However, s 69ZX(1) of the Act gives the Court the discretion to determine how particular evidence is to be given. I consider that section empowers me to determine that those parts of the father’s affidavit filed earlier in the parenting proceedings that I have referred to could be read in the mother’s contravention proceedings constituted by this application. I expect that same section empowers me to be able to direct the father to take the witness stand and make himself available for cross-examination, but I consider that would be well and truly against the principles of having to give evidence that might incriminate oneself, if one does not wish to, that normally apply in contravention proceedings that are considered “quasi-criminal” in nature.
Even if I did allow the mother to rely upon that evidence of the father, the incident about which the father is deposing in that affidavit occurred on 11 September 2019 not 9 September 2019 according to that evidence.
Accordingly, I am quite satisfied that the evidence that the mother adduces in support of the alleged contravention that she says took place at 8:00 am on 9 September 2019, the implied asserted out of court representations of Ms U and X and the previous affidavit of the father filed on 29 January 2020, do not establish a case, as alleged, for the father to answer. This satisfies me that the mother’s application does not have reasonable prospects of success. I will summarily dismiss it pursuant to s 45A(2) of the Act.
Application - Contempt filed 22 January 2020
In this application, the mother alleged that at 8:00 pm on 9 January 2020 the father contravened an order, without reasonable excuse, by physically disciplining X. As it is a contempt application pursuant to s 112AP of the Act, the mother has also alleged that the contravention “involves a flagrant challenge to the authority of the Court”.
It is again paragraph 12 of the Order of Registrar Spink of 20 March 2018 that the mother alleges was contravened. In support of the application, the mother filed and relies upon her own affidavit filed 22 January 2020. The only possibly relevant parts of that affidavit are:
2. On 9 January 2020 Mr Herbert physically disciplined X born in 2003 without reasonable excuse by grabbing him and pushing him up against the wall.
…
6. … My mother Ms AA then texted him and he replied he was safe at a friends and won’t be returning after he was abused physically and verbally by his father and verbally by his partner … (as originally written)
Once again, as the mother does not depose to being present at the alleged incident the evidence in the first paragraph referred to is mere assertion and can only be based on out of court representations by unnamed others. The evidence in the second paragraph referred to clearly includes alleged out of court representations by the applicant mother’s mother and the child, X.
When this was pointed out by me to the mother’s solicitor, he also said the mother relied upon a document purporting to be a statutory declaration signed by the child, X, in the presence of a Justice of the Peace, the content of which, it was submitted, supports the alleged contempt application. That document, too, if signed by the child, is an out of court representation of facts the boy intended to assert. It, too, is classic hearsay.
The difficulty for the mother on this particular application is that none of the hearsay evidence, not even the hearsay evidence of the child, is saved from inadmissibility by the provisions of Div 12A of Pt VII of the Act. Section 112AP is not within Pt VII of the Act and, therefore, these are not “child related proceedings” as that term is used in Div 12A. The Evidence Act provisions making hearsay evidence inadmissible means none of the evidence the mother relies upon is admissible. As such, her contempt application has no reasonable prospect of success. I am satisfied that it may be summarily dismissed pursuant to s 45A(2) of the Act.
Application - Contravention filed 6 May 2020
In this contravention application, the mother alleges that the father contravened an order, without reasonable excuse, at 2:00 pm on 9 February 2020 by refusing to allow the child, X, to spend time with the child, Y. She also alleges that he again contravened, without reasonable excuse, at 2:00 pm on 23 February 2020 by refusing to allow X to spend time with Y.
The Order alleged to have been contravened is paragraph (4) of my interim Orders of 5 February 2020. That Orders provides:
That commencing this Sunday, 9 February 2020, X shall spend time with the father and his brother, Y born in 2009, from 2.00 pm until 6.00 pm each second Sunday afternoon and he shall spend such other time with his father and/or his brother as may be agreed between X and his father from time to time with the arrangements for X to get to and from his father’s care to be made between him and his father.
The mother’s affidavit of evidence in support of the contravention application refers to an email sent on 5 February by her to the father’s solicitor saying that “[i]f X agrees to see his father on Sunday 9 February” the maternal grandmother would drop him at the father’s home. The mother also refers to a letter she then received on the same day from the father’s solicitor in which she was advised that the father and Y would be at a named sports centre between 2:00 pm and 6:00 pm on Sunday, 9 February, but that they would be at home if the weather was bad. The implication in that letter was that if X was going to spend time with the father and his brother as ordered, he would need to attend the sports centre to see them.
The mother then refers to a letter that the mother says her mother wrote to the father’s solicitor on her behalf informing the father that X “does not wish to see his father”. The letter went on to say that X would be happy to spend time with his brother, Y, away from sports and an alternative venue was suggested at a local shopping centre. The mother says the father did not respond to that suggestion.
The mother says that X attended the shopping centre at the time that had been suggested but that Y did not arrive. The mother goes on to say that X went to the sports centre at 2:00 pm and that the father did not arrive with Y by 2:10 pm, after which the maternal grandmother is said to have driven X to the father’s place. The mother’s evidence is that the grandmother saw the father outside on his footpath and she got out of her car and asked whether X could see his brother, Y. The mother said that the father “did not make Y available to spend time with X”. There was no evidence given that X got out to go with the father and to go inside and spend time with his father and his brother as the Order required. There was no evidence given of there being an agreement between the father and X for any time to be spent by X alone with his brother, Y, which the father is said to have not complied with. There is no evidence that the father was not ready, willing and able to welcome X and accommodate him in his home for the remaining hours of the afternoon.
48.The mother’s affidavit goes on to say that on 23 February “the father didn’t drop X (which is a mistake and should read “Y”) off at Suburb DD as organised with X when speaking with his father.” However, there is absolutely no reference to the factual circumstances of any such arrangement being made between the father and X for that day. The mother goes on to say that X called the sports centre that day at 3:30 pm to see if Y was there but Y “was not available”.
The mother’s application appears prefaced on a view that the order said to be contravened mandatorily requires the father to make Y available to spend time with X on their own and without the father’s presence. The submissions of her solicitor also were prefaced on that same view, or at least the proposition that the father had to act reasonably in making arrangements for Y and X to spend time together in his absence.
The mother’s evidence establishes that the father was informed, despite there being an order requiring X to spend four hours with the father and his brother, Y, each second Sunday afternoon, that X “does not wish to see his father”. The evidence reflects a belief on the mother’s part that despite X not wanting to spend time with his father that the father had an ordered obligation to ensure that X and Y spent time together as sought by X and that by refusing requests for X and Y to spend time together without the father present that the father is contravening the order. This is simply not correct.
The Order required X to spend time with his father and brother at certain times and for the logistics serving that end to be arranged between X and the father. There is no evidence that the father contravened that Order. The Order only provided for X and Y to spend time together at other times as may be agreed between the father and X. The terms and conditions of that were to be agreed between the father and X. There is no evidence that any such agreement was ever reached or what any terms and conditions of any such agreement may have been. As such, the mother has simply not established a case for the father to answer and this contravention application has no reasonable prospect of success. It, too, will be summarily dismissed pursuant to s 45A(2) of the Act.
Application - Contempt filed 6 May 2020 (re Contact)
In this contempt application, the mother makes the exact same allegations in respect of Sunday, 9 February 2020 as she made in support of the contravention application alleging contravention on Sunday, 9 February. This time she carries the added burden of proving not only did the father contravene an Order, without reasonable excuse, but that his contravention involved a flagrant challenge to the Court’s authority.
As I was satisfied that the contravention application could be summarily dismissed as having no reasonable prospect of success, it follows that I am equally satisfied this contempt application can also be summarily dismissed pursuant to s 45A(2) of the Act as having no reasonable prospect of success.
Application - Contempt filed 6 May 2020 (re Denigration)
In this contempt application, the mother alleges the father contravened an order, without reasonable excuse, in a way that involved a flagrant challenge to the Court’s authority by denigrating the mother in the presence of Y at 2:35 pm on Sunday, 9 February 2020. The Order the mother alleges the father contravened is paragraph 13 of the Orders of Registrar Spink of 20 March 2018. It provides:
That neither parent is to denigrate the other parent, or discuss adult issues with the children in the children (sic), or in their presence or hearing.
In her affidavit of evidence filed in support of the application the mother says that she has a recording “that states a conversation between Ms AA [the maternal grandmother] and the father … in the presence of the children [Y and X]”. There is no transcript of any such recording adduced into evidence. There is no electronic copy of the alleged recorded conversation adduced into evidence. There is no evidence from Ms AA in affidavit form supporting the allegation. Again, the mother is relying on hearsay evidence in s 112AP of the Act contempt proceedings where hearsay evidence is inadmissible.
The mother says that her mother was on the footpath when the father came up to her and stood very close to her. The mother says that X was sitting in the car that the grandmother was standing “near”. There is no mention of where Y was. The mother asserts that the father said to the grandmother about the mother “she’s mentally incompetent and a liar”. The mother does not assert that X heard what was said.
Excluding all of the affidavit evidence as hearsay evidence leaves no evidence against the father in support of this contempt application. I am satisfied it can be summarily dismissed pursuant to s 45A(2) of the Act as having no reasonable prospect of success.
Application - Contempt filed 3 June 2020
In this contempt application, the mother alleged that the father contravened an Order, without reasonable excuse, in a way that involved a flagrant challenge to the Court’s authority at 11:04 am on 12 April 2020 by not allowing Y to spend time with X and his young adult sister, Ms U, pursuant to paragraph 14 of the final parenting Orders made on 25 March 2020.
Paragraph 14 of those Orders provides:
That Y shall spend such time with his brother, X, and his young adult sister, Ms U, as is arranged by agreement between the father and X and/or Ms U.
The mother filed her own affidavit of evidence supporting this contempt application. In that, she sets out what she asserts are text messages between the adult daughter, Ms U, and the father. The mother says that Ms U has requested time with her brother, Y. The evidence purporting to set out these text messages does show Ms U expressing the desire to spend some time with Y and the father saying that could happen conditional upon him, the father, being present. The messages show the father telling Ms U the father’s reasons for that. The messages show Ms U telling the father that she does not agree to that and setting out her reasons for that. One purported message highlighted by the mother says “No. I am to supervise contact. You can see him here”.
The mother then goes on in that affidavit to make what is a submission, saying:
There is no where (sic) in the orders that states Ms U and X need supervised contact as the father states in his text to his daughter Ms U.
She is right about that point. The particular final Order I made does not mandate supervision of time that Y may spend with his sister and/or brother. However, it is plainly clear that any such time that he spends with his sister and/or brother is to be by agreement with the father. If there is no agreement then there is no obligation on the father to provide Y to spend time with his sister and/or his brother. There is no proscription on the father setting any conditions to such an agreement, such as a condition that such time take place in his presence. I consciously made the Order in that form.
The mother’s evidence does not establish that any agreement had been reached between the father and Ms U and/or X about spending time with Y that the father has then contravened. The contempt application is hopeless and bound to fail. I am readily satisfied that it should be summarily dismissed pursuant to s 45A of the Act.
Wife’s Application for a Stay pending Appeal
My Orders of 25 March 2020 finalised parenting and property adjustment proceedings. I also finalised two outstanding contravention applications the mother had commenced. My property adjustment Orders commenced at paragraph 25 of those Orders and concluded with paragraph 35 of the Orders. Paragraphs 37 and 39 dealt with costs matters and paragraph 38 dismissed the mother’s two contravention applications that were heard as part of the trial.
By Notice of Appeal filed 22 April 2020, the mother appeals against the parenting Orders I made and against the property adjustment Orders I made. I do not understand her to be appealing against the dismissal of her contravention applications that were heard at the trial. The outcome she seeks in the appeal is for the Court to re-exercise the discretion in relation to the parenting matters and to order that both X and Y live with her and for her to have sole parental responsibility for them. She seeks an Order that the children only spend such time with the father as is agreed between her and the father in writing. As for the outcome she seeks in respect of her appeal against my property adjustment Orders, she wants the Full Court to remit the property proceedings for a rehearing by another Trial Judge.
By her stay application, the mother seeks a stay of all the property adjustment Orders I made save for paragraphs 25 and 34. Curiously, she also seeks a stay of the dismissal of her contravention applications that she has not appealed against and the costs Order I made consequent to that. That, I assume, is an error on her part. If it is not, then her approach is misguided. An order dismissing her contravention applications cannot be stayed, even more so when there is no appeal against it.
Paragraph 25 of the Orders that is not sought to be stayed provided for the wife to retain as her property the car in her possession, furniture, jewellery and other personal property in her possession, and the balance of money held in the Trust Account of a firm of solicitors who had acted for the former couple on the sale of their former home.
Paragraph 34 of the Orders that is also not sought to be stayed provided for the husband to pay the wife within three months of the Orders the sum of $263,630 with some minor adjustments to that amount provided for that are not necessary to set out here.
The balance of the property adjustment Orders provided for the husband to keep all other property interests, including all shares in companies and loan account balances in trusts through which he operates finance business, for the wife to do all things necessary to transfer to the husband all of her interests in those companies and loan account balances in trusts, a significant super-splitting Order in favour of the wife requiring the husband to split to her $273,226 of his member interest in their self-managed superannuation fund (“SMSF”), the rolling out of all of the wife’s interest in their SMSF, including the split from the husband’s interest, and the sale of the business in default of payment of the cash sum of $263,630 to the wife required by paragraph 34.
Simply expressed, the wife wants the husband to comply with the order to pay her the cash amount of $263,630 but wants a stay put on all the other Orders that would put the ownership and control of the business and the SMSF in the hands of the husband and the wife’s existing and newly created (by splitting order) superannuation interests at her control.
The husband opposes the wife’s particular application. His position is that if there is to be a stay of the property adjustment Orders pending the hearing and determination of the wife’s appeal it should include a stay of the obligation imposed upon him by paragraph 34 to pay the wife $263,630 within three months of the date of the Orders. The husband’s position is that he wishes to retain the business and pay the wife out the money he was ordered to pay her. His evidence is that he simply cannot pay that without borrowing the funds from a financier such as a bank and that he cannot do that without being able to demonstrate to such a financier that his wife no longer has any interest in the companies and the trusts through which the business is owned and run. He says that is why he has not been able to comply with the obligation to pay the amount within the required three months, a period that has already expired. As I understood the husband’s evidence and submissions, even if that paragraph 34 was not stayed (just as the wife seeks), he would still not be able to comply with it and pay her the money if all the other paragraphs requiring the wife to sign over her interests in the companies and loan account balances of the trusts were stayed as she seeks. He does not submit there should be no stay at all. He simply submits that if there is to be a stay of Orders, it should reasonably include paragraph 34 of the Orders.
Principles by which a Stay Pending Appeal is Determined
The determination of an application for a stay of final orders pending an appeal against those order is a discretionary matter. It is well established that principles relevant to the discretionary determination include the following:[1]
·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 presume the judgment is correct;
·the mere filing of an appeal is insufficient to grant a stay;
·the bona fides of the applicant;
·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;
·the period of time in which the appeal can be heard and whether existing satisfactory arrangements may support the granting of the stay for a short period of time.
[1]Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106 at 6.
After the husband’s solicitor informed the Court that the husband would consent to the stay the wife sought conditional upon the stay also applying to paragraph 34, the wife’s response to that was sought. Her solicitor informed the Court that the wife opposed that as she is in financial need and looks forward to receiving the payment that paragraph 34 provides for. Unfortunately, that position shows no understanding of the commercial reality of the probability of the husband’s assertions about obtaining finance being completely correct. It is difficult to comprehend a bank or other financial institution lending such amount of money to the husband for him to pay out the wife in circumstances where he cannot demonstrate to the bank that he has sole control over the companies and the trusts through which the business is operated and where the wife, simply by refusing to countersign applications as a co-director, can prevent that. I am also satisfied that it is a reality in this case that the wife will not countersign anything presented to her by the husband that requires her signature.
When asked about the strength of the proposed appeal, the solicitor for the wife, respectfully, offered little assistance to the Court. My own preliminary consideration of the grounds of appeal set out in the wife’s Notice of Appeal against my reasons for judgment do not cause me to take the view that the wife’s prospects of success on the appeal are good. However, as the husband does not oppose the stay sought by the wife as long as paragraph 34 is also stayed, this will not weigh heavily in my consideration.
Additionally, I struggled to see just how the appeal may be rendered nugatory if the stay is not granted. It seems to me that if the wife complied with all the orders and the husband paid her the cash sum he is required to pay her and retained the business, that if the wife succeeds on appeal and gets a retrial then any further orders that require more funds to be paid to her (as she told the Court she does not ask for the business, just more money) will be able to be satisfied by the husband splitting more of his superannuation interest or borrowing more funds against the business or, in default of that, being required to sell the business (valued at trial at $612,335) so that the wife may be paid her entitlement. In such circumstances, it is difficult to see the risk of the appeal being rendered nugatory if a stay is not granted.
When asked about that aspect of the matter, the solicitor for the wife told the Court that the wife fears the husband will act to her prejudice if he has sole control over the business pending the hearing and determination of the appeal. She may honestly have that fear, but whether there is a reasonable basis for it is another issue. In any event, as I have already noted, the husband does not ask for the wife’s stay application to be dismissed. He just asks for the stay to also apply to the order requiring payment to her of the cash amount. This being the most significant issue then for determination, accepting the husband’s evidence that he will not be able to obtain finance to meet the paragraph 34 obligation imposed upon him if all the other paragraphs of the property orders are stayed, I consider that it is appropriate to include that paragraph as a subject of the stay order. If I do not do that, I am satisfied that the wife will not receive the funds anyway and the husband would simply, prima facie, be in contravention of an order that he simply cannot meet.
I will stay paragraphs 26 to 36 of my final property Orders made 25 March 2020 pending determination of the wife’s appeal against those Orders.
Husband’s Application in a Case
In his Application in a Case, Mr Herbert seeks a number of Orders. Attached to the Outline of Submissions filed by his solicitor was an amended set of Orders the husband seeks. Principally, he seeks vexatious proceedings orders against the wife pursuant to Pt XIB Div 2 of the Act. He wants all of the contravention and contempt applications that I have already determined to summarily dismiss to be declared as vexatious proceedings and, most significantly, for an Order to be made prohibiting Ms Herbert from instituting any further contravention or contempt proceedings against him without first obtaining the leave of the Court. He also wants some other Orders that I will return to.
Section 102Q(1) of the Act defines “vexatious proceedings”. They include:
(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.
Section 102QB(1)(a) of the Act applies if this Court is, relevantly, satisfied that a person has frequently instituted or conducted vexatious proceedings in Australian courts or tribunals. If so satisfied, the Court may, relevantly, make an order prohibiting the person from instituting proceedings of a particular type under this Act in a Court having jurisdiction under this Act (s 102QB(2)(b)). The Order may be made on the application of the person against whom another person has instituted or conducted vexatious proceedings (s 102QB(3)(c)). This Court must not make a vexatious proceedings order in relation to a person without hearing the person or giving the person an opportunity of being heard (s 102QB(4)). The Court may, relevantly, have regard to proceedings instituted or conducted in any Australian court, and the person’s overall conduct in proceedings conducted in any Australian court (including the person’s compliance with orders made by that court) (s 102QB(6)(a) and (c)).
If a person is made subject to a vexatious proceedings order prohibiting the person from instituting proceedings or a particular type under this Act in a court having jurisdiction under this Act, the person must not institute proceedings of that type in the court without the leave of the court under s 102QG (s 102QD(1)(a)). If a person is subject to a vexatious proceedings order, that person may apply to the court for leave to institute proceedings that are subject to the order (s 102QE(1) and (2)). If so, the person must file an affidavit with that application that lists certain specified matters and discloses all relevant facts about the application, whether supporting or adverse to the application that are known to the applicant (s 102QE(3)). The person must not serve a copy of the application or affidavit on another person unless an order is made under s 102QG(1)(a) (s 102QE(4)).
Under s 102QF, the Court may dismiss the application for leave to institute proceedings and can do so without an oral hearing and can do so in chambers. Before granting the applicant leave to institute proceedings, the respondent must be served and given an opportunity to be heard at the hearing of the leave application and the Court must be satisfied the proceedings are not vexatious proceedings (s 102QG).
Ms Herbert has a demonstrated history of bringing contravention applications against Mr Herbert in this Court. Interestingly though, it was Mr Herbert who first brought a contravention application against Ms Herbert in which he alleged she was contravening the interim orders to provide the children to him to spend time with him. Ms Herbert soon followed with a number of contravention applications of her own against Mr Herbert. On 28 August 2018, I declared that the mother had contravened the parenting orders, without reasonable excuse, on 27 and 28 April and also on 30 June 2018 by not providing the children for their ordered time with the father. On the same day, on the application of Ms Herbert, I declared that the father had contravened an interim order not to discuss adult issues with the children on 12 May and 21 July 2018. I also declared him to have contravened particular disclosure orders made by a Registrar of the Court.
After that, Ms Herbert has continued to file contravention applications. As I have already mentioned, she filed some more in the lead up to the trial of the substantive applications. For convenience, I listed and heard those as part of the trial. I dismissed all those. A few of the alleged contraventions contained in those applications, I dismissed on the basis of there being no case to answer. After the trial was concluded and whilst my judgment was still reserved, Ms Herbert filed a contravention and a contempt application. At the time she was not legally represented. She clearly expected them to be heard before I delivered my reserved judgment, demonstrating a belief that filing the applications should somehow influence the outcome of the proceedings. Those two are amongst those that I have now determined to summarily dismiss as having no reasonable prospects of success.
Then, whilst waiting to have those applications listed for hearing and heard, and after I have delivered my final judgment in the parenting and property adjustment proceedings, Ms Herbert filed several more contravention and contempt applications. I have determined to summarily dismiss each of those as having no reasonable prospects of success. Regrettably, Ms Herbert has demonstrated no proper understanding of the contravention and contempt processes and the evidentiary basis upon which such applications may be sustained. Ms Herbert also told the Court when she was asked on one of the occasions the applications were mentioned that she was desirous of the Court sending Mr Herbert to prison as a consequence of his alleged contraventions and contempt of the Court. Such a consequence would be, I am satisfied, totally excessive, inappropriate and disproportionate to the contraventions/contempts alleged by Ms Herbert (none of which were sustainable in any event). This fact, combined with the hopelessness and lack of reasonable grounds of the repeated applications filed, satisfies me that Ms Herbert’ contravention and contempt applications against Mr Herbert have become vexatious and she should be made subject to an Order that prohibits her from bringing contravention or contempt applications against Mr Herbert without first obtaining the leave of the Court. I will make such an Order pursuant to s 102QB(2)(b) of the Act.
This Order will have a further benefit to the efficient disposition of the Court’s work. Ms Herbert has been unrepresented in these proceedings for some time after having been represented at different stages of the proceedings by a number of different firms of solicitors. For the listed hearing of the contravention/contempt applications that she had filed, legal representation was necessary due to the provisions of s 102NA of the Act. Ms Herbert is the named aggrieved person to a Queensland Family and Domestic Violence Protection Order with Mr Herbert being named as the respondent. As such, Ms Herbert is prohibited from directly cross-examining Mr Herbert pursuant to s 102NA(2)(a). If she continues to seek leave to file contravention or contempt applications against Mr Herbert after the vexatious proceedings Order is made against her, it will also give the Court the opportunity to consider the requirement for the making of Orders pursuant to s 102NA in the event that consideration is to be given to the question of giving Ms Herbert leave to file any such application.
The Other Orders Mr Herbert sought
The solicitor for Mr Herbert proposed an Order that the time referred to in paragraph 34 of my final Orders be extended to sixty days after the decision of the Full Court in the wife’s appeals is delivered. I will not do that at this point in time. To vary my final property adjustment Orders, I would have to rely upon the consent of the parties or the powers conferred on the Court by s 79A of the Act. Consent is not forthcoming and no argument was put to the Court about the applicability of s 79A of the Act. Though the time within which the husband was to pay the money to the wife pursuant to paragraph 34 has already expired, I will be staying that paragraph, so the obligation to pay the money is stayed pending the determination of the appeal. After the Full Court delivers its decision in the appeals, if it has not made orders that affect my original orders, then paragraph 34 and the other orders will become extant again. Whether they need to be varied having regard to the circumstances will be a matter to be determined at that time.
88.Included in the Orders sought by the husband was an order that a registrar be authorised pursuant to s 106A of the Act to sign documents that the wife was required to sign pursuant to my final property Orders including her resignation as manager of one of the companies running the finance business, transfer of her shares in that company to the husband and a letter to the Commonwealth Bank authorising the lifting of a stop that is currently placed on an account and a letter to CommSec authorising the lifting of the suspension on the SMSF’s share trading account.
I must concede that I remain a touch confused about the husband’s position. These are all matters that are not to happen given the stay that I intend to put in place by order that the husband’s solicitor informed the Court that the husband agrees to, if paragraph 34 is also stayed. I do recall that the husband’s solicitor did at the hearing reference the husband’s complaint that he cannot even obtain finance to purchase a new office equipment without the wife’s co-signature. However, I cannot quite reconcile the apparent conflicting positions taken by the husband and, as such, will not make this order that is included in the draft proposed order provided to the Court by his solicitor. What I will point out is that if the husband needs to obtain the wife’s signature in respect of any matter pertaining to the ongoing day to day ordinary course of business of the finance business as a consequence of the stay I am putting in place, that should be made the subject of a reasonable request of the wife. If the wife unreasonably withholds co-operation and consent, forcing the husband to again apply to this Court on an interim basis for a more specific order that would enliven s 106A of the Act, the wife must be aware of the potential costs consequences of any such unreasonable behaviour. Indeed, she will be after this judgment is delivered, in any event.
Costs
I invited submissions from the parties as to costs whatever the disposition of the matters before me. The applicant was always on notice that if her applications were unsuccessful that the respondent would be applying for a costs order to be made against her. In anticipation of that, I had previously directed the respondent’s solicitor to prepare a costs schedule. He did that and provided it to the Court on the day of the last hearing, having given it to the applicant’s solicitor before that. That schedule itemised all of the costs the respondent asserts he has been put to by the wife’s applications pursuant to the scale of costs provided in the Family Law Rules 2004 (Cth) (“the Rules”) on a party and party basis. It totals $3,936.23 for the costs and outlays pertaining to all of the matters dealt with in this judgment. It then adds an additional 30% to that ($1,180.87) for what is described as “care, skill, consideration”. The respondent asks for an Order that the applicant pay his costs of and incidental to the matters in the sum of $5,117.10.
Pursuant to s 117(1) of the Act, the general principle is that each party to proceedings under the Act bears his or her own costs. That is, however, subject to a discretion conferred on the Court in s 117(2) to make such order as to costs as is just when the Court is satisfied that the circumstances justify it doing so. In determining any such Order the Court must consider the matters set out in s 117(2A).
All of the applicant’s contravention/contempt applications are being summarily dismissed as either hopeless, bound to fail or having no reasonable prospect of success. I have determined them to be vexatious proceedings as that term is defined in the Act, meaning the applicant was wholly unsuccessful in respect of all of those matters. The applicant obtained a stay of my property adjustment Orders, but not in the terms she sought and only because the respondent did not oppose the granting of that stay. Indeed, he succeeded in having paragraph 34 made subject to the stay over the applicant’s opposition to that particular course.
The applicant is not in great financial circumstances. That I accept. However, she is, currently, the beneficiary of a final Order that would have the respondent husband paying her close to $263,000. She has appealed against that and a successful outcome could see her receiving even more than that in cash payment from the husband. Even if she is not successful, that cash payment she is entitled to is a fund from which costs orders in favour of the husband will be able to be satisfied. I am quite satisfied a costs order is justified in the circumstances of this case. The applicant’s vexatious and unsuccessful applications have caused the respondent unnecessary anguish and expense. What I consider is now a timely determination of all these matters, particularly the contravention and contempt applications (without a lengthy hearing with cross-examination) will also save the respondent and the legal aid purse some more money and also minimise the applicant’s exposure to an even greater costs order.
Rule 19.18 of the Rules permits the making of a costs order fixed in a specific amount. I am satisfied that the just costs order to make is for the applicant to pay the respondent’s costs fixed at $3,936.23 and for that amount to be paid by her by offsetting it against the amount the respondent is to pay her pursuant to paragraph 34 of my final property adjustment Orders or any variant of that Order as might be determined as a consequence of the applicant’s appeal against my final Orders. I will not add any amount for “care, skill and consideration” as I could not see such an item in the currently applicable Scale of Costs included in Sch 3 to the Rules. I am of the view that such matters are already accommodated within the Scale.
I shall make the Orders set out at the commencement of these written reasons.
I certify that the preceding ninety-five (95) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 23 July 2020.
Associate:
Date: 23 July 2020
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