Hoyt & Hoyt (No 2)
[2024] FedCFamC1F 38
•5 February 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Hoyt & Hoyt (No 2) [2024] FedCFamC1F 38
File number: MLC 2823 of 2023 Judgment of: CAMPTON J Date of judgment: 5 February 2024 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – APPLICATION FOR REVIEW – Where the mother sought to review procedural determinations made by a registrar refusing the filing of three applications in a proceeding pursuant to r 12.24(e) as they occasioned an abuse of process – Where the applications in a proceeding are an attempt to relitigate another variation of interim parenting orders made less than two months before the refusing to file – Where mother seeks array of additional orders not available on a procedural review determination – Where the applications in a proceeding are an abuse of process – Amended Application for Review dismissed. Legislation: Family Law Act 1975 (Cth) ss 67Z and 69ZW
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 2.24 and 14.07
Cases cited: Rice & Asplund (1979) FLC 90-75 Division: Division 1 First Instance Number of paragraphs: 39 Date of hearing: 2 February 2024 Place: Sydney Solicitor for the Applicant: Litigant in person Solicitor for the Respondent: Litigant in person Counsel for the Independent Children's Lawyer: Ms Agresta of counsel Solicitor for the Independent Children’s Lawyer: Victoria Legal Aid ORDERS
MLC 2823 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS HOYT
Applicant
AND: MR HOYT
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
CAMPTON J
DATE OF ORDER:
5 FEBRUARY 2024
THE COURT ORDERS THAT:
1.The Amended Application for Review of the mother filed 19 January 2024 is dismissed.
2.The directions hearing listed before a judicial registrar at 10.00am on 7 February 2024 is vacated.
3.The proceeding be listed for a compliance and readiness hearing before Justice Hartnett on 14 February 2024 at 9.30am.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonyms Hoyt & Hoyt has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
CAMPTON J
These reasons determine the Amended Application for Review of Ms Hoyt (“the mother”) filed 19 January 2024 from procedural determinations made by a Judicial Registrar pursuant to r 2.24 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”) refusing the filing of the following on account of them being an abuse of process:
·Urgent Application in a Proceeding –3 December 2023
·Urgent Application in a Proceeding – 8 December 2023
·Urgent Application in a Proceeding – 18 December 2023
For the reasons that follow, the Amended Application for Review is dismissed.
BACKGROUND
The mother and Mr Hoyt (“the father”) commenced cohabitation in 2012, married in 2013 and separated on a final basis on 9 January 2019.
The parties have three children, Y born 2016, currently 7 years old, X born 2017, currently 6 years old, and Z born 2018, currently 5 years old (collectively, “the children”).
On 20 March 2023 the father filed an Application for Final Orders in the Federal Circuit and Family Court of Australia (Division 2) seeking sole parental responsibility and for the children to live with him and spend time with the mother for six hours per week.
On 12 April 2023 a Senior Judicial Registrar made orders pending further order for the father to have sole parental responsibility of the children, for them to live with him and to spend supervised time of two hours per fortnight with the mother. An injunction was ordered restraining the mother from:
a.Attending upon any medical profession or discussing with them the children’s medical or health-related affairs;
b.Administering medication to the children that is not prescribed or recommended by a relevant medical professional;
c.advising the children that they have any illness or disease unless diagnosed by a suitably qualified medical professional;
d.consuming alcohol or illicit drugs, or be affected by alcohol or illicit drugs, when with the children;
e.exposing the children to physical or verbal violence; and
f.subjecting the children to verbal or emotional abuse, including but not limited to swearing at or otherwise denigrating them.
On 19 June 2023 the mother filed a Response to Final Orders seeking that the orders made on 12 April 2023 be struck out and for the matter to be transferred to the Federal Circuit and Family Court of Australia (Division 1). She sought both interim and final orders for the children to live with her and spend time with the father once per fortnight at a supervised contact centre and upon his request “as agreed” by her. Further, she sought final orders for, amongst other things, sole parental responsibility for the children.
Orders were made on 23 June 2023 and 30 June 2023 releasing material produced pursuant to ss 67Z and 69ZW of the Family Law Act 1975 (Cth) (“the Act”) to the legal practitioners for inspection only. On 1 September 2023, the matter was transferred to the Federal Circuit and Family Court of Australia (Division 1).
On 13 September 2023 the mothers Application in a Proceeding filed on 6 July 2023 was heard by Strum J. The mother sought for the orders made on 12 April 2023 to be struck out, orders restraining Mr H (the father’s solicitor) from representing the father in any further legal proceedings, and for either her to have primary care of the children, have a minimum of three days and/or nights per fortnight with the children, or any visitation orders which the Court sees fit. During the hearing before me, the mother complained that she did not have access to the ss 67Z and 69ZW material for the purposes of the hearing before Strum J. It is uncontroversial that the mother had the opportunity to inspect the material at the registry prior to the hearing and that material was provided to her at the court. The reality of this complaint is that she wishes to have digital access to the material.
On 12 October 2023 Strum J delivered reasons for judgment dismissing the mother’s application to discharge or vary the parenting orders recently made, finding there had been no material change to warrant the relief as sought by the mother and that the orders she sought were not in the children’s best interests. Strum J recorded the history of parenting matters in both the Children’s Court of Victoria and the Victorian Supreme Court, undertaking a detailed evaluation of evidence adduced from the Department of Families, Fairness and Housing and the expert evidence contained in a Child Impact report. Orders were made as supported by the father and the ICL varying Order 11(b) made on 12 April 2023 increasing the mothers supervised time with the children to four (4) hours per fortnight, in weekly two-hour blocks, or fortnightly four-hour blocks.
Less than two months later, an Application in a Proceeding of the mother filed on the court portal on 3 December 2023 sought:
1.Pursuant to Core Principle 6- Non-Compliance, paragraphs 3.11 & 3.12
That the Court determine the Mother’s Urgent ‘Application in a Proceeding’, on an undefended basis, and grant Interlocutory Orders for the mother to have Sole Parental Responsibility for the Children, [X] (DOB […] 2014), [Y] ([…] 2016), and [Z] ([…] 2018).
2.That the children live with the mother.
3.That the Court dismiss the Application of the father, dated 20 March 2023.
4.That the Court determine the Mother’s request for Final Orders on an undefended basis.
5.Any other Orders this Honourable Court deems appropriate.
(Amended Application for Review filed 19 January 2024, p. 80)
The mother filed an affidavit in support of the Application in a Proceeding. That affidavit recorded a litany of the mother’s complaints and her submissions. Evidence as to any material change of circumstances to ground a variation of the orders made by Strum J was scant.
The mother received the following correspondence on 8 December 2023 refusing and voiding the filing of an Application in a Proceeding on 3 December 2023 recording:
Dear [Ms Hoyt],
The Court acknowledges receipt of the Application in a Proceeding (?the Application?) referenced above, through the Commonwealth Courts Portal.
I advise pursuant to rule 2.24(e) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), the Application has not been accepted for filing where the orders sought in the Application seek to reagitate issues that were litigated before the Honourable Justice Strum on 13 September 2023 and subject to Orders made on 12 October 2023…
(Amended Application for Review filed 19 January 2024, p. 72).
An Application in a Proceeding of the mother filed on the court portal on 8 December 2023 sought:
Orders sought in response to;
•the Review of a Registrar’s Decision, and
•the mother’s Urgent Application in a Proceeding for time with children
1. That the Court overrule the Rejection by Deputy Registrar […] that the mother’s current Application in a Proceeding is “an Abuse of Process, Vexatious, Frivolous or Scandalous” and address the mother’s Urgent Cover Letter, Urgent Application, and Affidavit accordingly.
2. That a Harmful Proceedings Order be made for [X], [Y], and [Z], and that changes to the Interim Orders reflect the Children’s best interests and wellbeing and their need for time with their mother as an important person in their lives.
3. That Orders for the children’s place of residence and Interim parenting Orders be made in alignment with the Family Law Act 1975, the new Amendments, and upon the Court making an arduous attempt to detect the System Abuse within the FCFCOA which the mother (and an SRL) has been a victim of since March 2023.
4. That the document titled ‘Abuse of Process’ contained within the mother’s Court Book/Trial Book be thoroughly consulted and the current Orders set aside accordingly.
5. That the current Interim Orders being deemed invalid and new Orders made which reflect;
a) the time lost over 17 months of separation between the children and their mother and
b) the detriment the mother has sustained as a result of the scandalous and vexatious behaviour of the father, his lawyer, and the Department of Families, Fairness, and Housing.
6. Any other Orders the Court wishes to make on their own motion which embody the Court’s commitment to child safety & wellbeing, the best interest principles of the children, and the Court’s dedication to protecting the vulnerable members of society from Family Violence.
(Amended Application for Review filed 19 January 2024, p. 70) (Emphasis in Original)
The mother filed an affidavit in support on the same day repeating the contents of the affidavit filed in support of the 3 December 2023 Application in a Proceeding.
The mother received the following correspondence on 12 December 2023 for reasons of refusal of the Application filed on 8 December 2023:
Dear [Ms Hoyt],
The Court acknowledges receipt of the Application in a Proceeding (‘the Application’) referenced above, through the Commonwealth Courts Portal.
The Application dated 3 December 2023, and filed under letter dated 8 December 2023 has not been accepted for filing.
It is noted that this Application was previously rejected for filing on 7 December 2023 pursuant to rule 2.24(1)(e) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) where the Application sought to reagitate issues litigated before the Honourable Justice Strum on 13 September 2023 and subject to Orders made on 12 October 2023.
A person may apply for review of a Registrar’s decision under subrule (1) or directions given by a judicial officer under subrule (2) by filing an Application in a Case without notice…
(Amended Application for Review filed 19 January 2024, p. 60).
On 12 December 2023 the mother filed an Application for Review of determinations made by a Registrar on 3 and 8 December 2023.
The mother filed another Application in a Proceeding on the court portal on 18 December 2023 seeking:
1.That the children, [X] (born […] 2014), [Y] (born […] 2016) and [Y] (born […] 2018) spend 174 hours (or 7.2 days) with the mother from;
a. Midday on Thursday, 21 December 2023 until midday 28th December 2023,
b. Pursuant to the mother’s lost time with the children after the commencement of Family Law Proceedings, and
c. The father’s parenting proposal dated 14 March 2023 which offered that;
2.The children spend time and communicate with the Respondent Mother as follows:
(a)Three times a week for a period of 2 hours per visit, at times and places as agreed between the parties and, failing agreement;
(i)On Tuesday and Wednesday afternoons, from the conclusion of school/child care, until 5:30pm; and
(ii) On Saturday from 3:30pm until 5:30pm.
d. With lost time being the result of misleading and deceptive information conveyed by [Ms F] (DFFH Litigation Officer), the Applicant Father, and his solicitor, [Mr H], at the Interim Defended Hearing on 12 April 2023 with [a] Senior Judicial Registrar […], and
e. With this being one of the fundamental ‘Best Interests Principles’ of a child; to spend time with people of importance such as their mother, maternal grandparents, aunts/uncles, and cousins (who they haven’t been in contact with for over 17months).
2. That this application be considered on an undefended basis, pursuant to the breach of Core Principles by the other parties, most notably;
a. Non-Compliance by the father to partake in mediation, the pre-procedural steps, Family Dispute Resolution, or consultation with the mother in between hearings,
b. The Independent Children’s Lawyer (ICL) misusing the Child Impact Report, which was biased by another government official via the provision of a 67z report,
c. The ICL and father insisting on the mother being supervised despite the mother’s right to be considered innocent until proven guilty,
d. The unrealistic orders sought by the father and ICL requesting that visitations continue at the Supervised Contact Service, at a cost of $300 per week for 2-hour sessions, and
e. The Judicial Registrar overseeing the case of the Evatt List, blocking the previous applications by the mother (and victim of Family Violence) from seeking further time with the children in a non‑supervised capacity.
3. That the Court utilise the new Family Law legislation and make an order in alignment with the ‘Harmful Proceedings Orders’ now available and in consideration of;
a. The severe psychological trauma and pain suffered by the mother over 17 months of defamation, vilification, discrimination, and false allegations, by Child Protection and the father,
b. The financial harm caused to the mother due to inability to continue her career while in fear for the children’s safety,
c. The children’s requests (noted on 18 July 2022, after their wrongful removal from their mother) to return home to their mother and spend time with their father,
d. The Department’s failure to confirm their concerns for the children with an experienced paediatrician, regarding the children’s possible diagnoses of neurodiversity (protected by Victoria’s Mental Health and Well-Being Act 2022) and possible need for intervention if indicated, and
e. The Abuse of Process which saw the misuse of the Supreme Court of Victoria, the Children’s Court, Melbourne, and the FCFCOA in April, as part of the Department’s aim to avoid the allegations against the mother from being dismissed by two other jurisdictions.
4. That the children spend time with the parent they do not reside with, on times and days agreed to by the parents.
5. That the parents do not denigrate one another.
6. That the parents are permitted to answer questions asked by the children;
a. In alignment with a child’s need for validation, secure attachment, and trust in adults,
b. in a truthful manner without falsification or embellishment,
c. in a manner suitable for the child’s level of development and emotional maturity, and
d. without denigrating the other parent or their actions/choices made while under the emotional stress experienced by all.
(Amended Application for review filed 19 January 2024, p. 15 – 17)
The affidavit filed by the mother in support of the 18 December 2023 Application in a Proceeding was not dissimilar to the affidavits of 3 December and 8 December 2023.
The mother further received the following correspondence on 22 December 2023:
Dear [Ms Hoyt]
The Court acknowledges receipt of the application referenced above, through the Commonwealth Courts Portal.
As previously indicated, the issue of your interim time with the children was considered by the Honourable Justice Strum and his decision of 12 October 2023 confirms that those issues were considered.
Your application filed 18 December 2023 is again an application to change the current interim parenting arrangements and has accordingly been rejected for filing by the docketed Judicial Registrar. The docketed Judicial Registrar notes the application does not set out clear enforceable orders sought and is not supported by any new evidence that was not available on 13 September 2023 when the matter was before the Honourable Justice Strum.
In addition, many of the orders sought seem to be about proving facts or events which are issues for final hearing. The more interim applications filed the longer it is going to take to get this matter to a final hearing.
You have elected not to have legal representation however if you are of the view that you cannot follow the court process or do not understand court processes you should obtain legal advice.
Please be advised that no further response will be provided.
(Amended Application for Review filed 19 January 2024, p. 6).
The mother sought leave to amend her Application for Review. On 8 January 2024, a Judge of this Court ordered:
1.The applicant be granted leave to amend the Application for Review filed 12 December 2023 by no later than 4pm on 19 January 2024.
(Emphasis in Original)
The Amended Application for Review filed by the mother on 19 January 2024 seeks:
Orders Sought
1.That the decision NOT be remitted back to the original decision maker, Judicial Registrar […], for further consideration.
2.That the current Interim Orders be deemed invalid and set aside, based on;
a)the supporting documents filed with the mother’s Application for Review; and
b)the evidence within the mother’s documents filed with the Court.
3.That any lost contact time between the mother and the children, which the Court deems as having been wrongfully incurred;
a)be made up; and
b)be consistent with the parent’s previous parenting arrangement; and
c)be backdated to the commencement of the proceedings on 6 July 2022; and
d)commence immediately.
4.That the Court grant the mother leave to request Declarations for consideration, upon this option becoming available at the conclusion of the current review.
5.That any Declarations or Remedies granted, be customised by the Court to the particulars of the case.
6.That the transcripts from procedural hearings on;
a)27 July 2023
b)31 October 2023
Be consulted when reviewing the conduct of [the] Judicial Registrar […] in the making of her decision/s.
7.That the mother’s Final Orders be considered on an undefended basis; or, in failing this;
a)That the rules of evidence apply, pursuant to 69ZT; and
b)That the rules against hearsay apply in the case moving forward.
8.That all material, including reports and subpoenaed material, be available to the mother in the same manner as the solicitors and in alignment with the Children’s Court processes.
9.Any other Orders this Honourable Court sees fit to implement in upholding;
a)the due administration of justice; and
b)the best interest and safety of the public; and
c)the UN Convention on the Rights of the Child
The father and the ICL oppose the relief sought in the Amended Application for Review.
THE REVIEW
The Judicial Registrars determinations in rejecting the filing and voiding of the three applications in a proceeding now subject to review were made pursuant to r 2.24 of the Rules.
Rule 2.24 of the Rules allows for rejection of documents for filing for the following reasons:
2.24 Rejection of documents
(1) The court may reject a document filed or received for filing if the document:
(a) is not in the proper form in accordance with these Rules; or
(b) is not executed in the way required by these Rules; or
(c) does not otherwise comply with a requirement of these Rules; or
(d) is tendered for filing after the time specified in these Rules or an order for filing the document, or is otherwise contrary to directions given; or
(e) on its face, appears to the court to be an abuse of process, frivolous, scandalous or vexatious; or
(f) is tendered for filing in connection with a current proceeding in a registry that is not the filing registry; or
(g) is filed electronically and the person filing the document has not complied with the court’s electronic filing procedures.
Note:A person who starts a proceeding by making an application for an order under Part VII of the Family Law Act must file a certificate under subsection 60I(8) of the Family Law Act with the application or an affidavit if no certificate is required because an exception applies (see rule 4.02).
(2) If a judicial officer rejects a document filed or received for filing under subrule (1), the judicial officer may give directions about any step already taken on the document, including a direction about costs.
(3) If a decision under subrule (1) is made by the court constituted by a Judicial Registrar (other than an Appeal Judicial Registrar), a person may apply for review of the Registrar’s decision under subrule (1), or directions given by the Registrar under subrule (2), by filing an Application for Review without notice.
Note:For review of an Appeal Judicial Registrar’s decision to reject a document, see rule 13.40.
Rule 2.24(3) provides that a party can review a decision of a registrar to reject a document for filing.
The mother says in the Amended Application for Review filed 19 January 2024 that:
… The case was initiated through an abuse of process by the father and this is outlined in my material thoroughly. Deflecting this allegation onto me shows System Abuse at the level of the Judicial Registrars who filter the incoming applications. We advanced to the Evatt List because I am the victim of long-term domestic abuse, as are my Children. We've had our rights abused more than ever since coming into the FCFCOA.
THE LAW
Rule 14.07 of the Rules sets out the power of the Court on review from a determination of a Judicial Registrar is to be exercised by way of an original hearing.
DETERMINATION
This is a procedural review of three determinations made by a judicial registrar in whether the Applications in a Proceeding should have been accepted for filing.
The relief sought by the mother in her Amended Application for Review filed 19 January 2024 includes an array of substantive orders, including but not limited to an application to recuse a judicial registrar, for the current interim parenting orders being set aside, for the time regimes that she spends with the children being varied and for other extensive relief. Any relief as sought on review except as to the determinations made by the judicial registrar is not competent by way of the review of these procedural determinations and is an abuse of process. Such relief, as attempted to be prosecuted on review, either masks a challenge to the judgment and interim parenting orders of Strum J, prosecutes through a review process a further application for variation of those recently made contested orders or seeks on review other procedural orders outside the compass of those determined by the judicial registrar.
The affidavits attempted to be filed by the mother in support of each Application in a Proceeding largely replicated one another. For the large part they contained the mother’s litany of complaints as to court processes, Child Protection, the father and the father’s solicitor. They include identifying her beliefs as to what parenting regime would best promote the interests of the children.
The mother’s affidavit evidence and submissions as to challenges to procedural directions made prior to the hearing before Strum J and as to interim parenting orders made prior to the orders of Strum J are moot. Her complaints as to the reasons of Strum J were not the subject to appeal.
The affidavits relied upon by the mother adduced evidence as to she currently electing not to exercise supervised time with the children pursuant to the current orders. She said:
11.My children have not seen or heard from their mother in over 4 weeks after I had to cease contact occurring in a Supervised Contact Centre. This was after 6 months of partaking in these 2-hour, fortnightly visits at ‘[G Contact Centre]’ in [City C]. Our visits were highly emotional for us all and the children pleaded to return home during each visit. I could not reassure them that a positive outcome was in sight, and our relationship was being strained. There was no indication that the need for a Supervised Contact Centre would be reviewed and I was being treated like a criminal. This severely impacted on my […] health.
(As per the original)
During the hearing of the review the mother said that she had now not spent time with the children for around 13 weeks.
To achieve her objective to have the Court again entertain a variation to the current interim parenting orders, the mother needs to demonstrate a material change in circumstances since those last orders were made to warrant such revision of them (Rice & Asplund (1979) FLC 90‑75). Her current evidence does not fall into that category. The filing of these three Applications in a Proceeding by the mother attempts to re-open applications that have previously been dealt with.
The ICL submitted that the reason for the failure of the litigation process to deliver an expeditious final trial determination of this matter was caused by the constant and repetitive filing of interlocutory applications by the mother. The mother complained during the hearing of the review as to the fact of her prosecution of it delaying the progression of the matter to final trial. Notwithstanding that complaint, the mother strenuously prosecuted this very application delaying the progression of s final determination of the parenting proceeding.
CONCLUSION
Rule 2.24(e) provides for the rejection of documents considered to be an abuse of process. For all of these reasons, the Applications in a Proceeding subject to review were an abuse of process. Their filing was properly rejected by the judicial registrar. That being so, the Amended Application for Review must fail.
Both parents and the ICL agreed that the matter be listed for trial as soon as possible. The upcoming directions hearing before a judicial registrar will be vacated and the matter listed for a case readiness hearing before the Division 1 national case management judge.
I make the orders as set out in the commencement of these reasons for judgment.
I certify that the preceding thirty-nine (39) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Campton. Associate:
Dated: 5 February 2024
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