Jabbar & Gade (No 2)
[2020] FamCAFC 119
•20 May 2020
FAMILY COURT OF AUSTRALIA
| JABBAR & GADE (NO. 2) | [2020] FamCAFC 119 |
| FAMILY LAW – APPEAL – SUMMARY DISMISSAL – Where the Initiating Application sought to re-agitate decided parenting proceedings – Where the Initiating Application had no reasonable prospects of success – s 102QB Order – No error demonstrated – Appeal dismissed. FAMILY LAW – APPEAL – APPEAL AGAINST COSTS ORDER – Where the primary judge made an order for costs against the mother – Where the mother appealed that order – Costs order properly made – Appeal dismissed. FAMILY LAW – APPEAL – COSTS – Where the mother’s appeals were wholly unsuccessful – Where the father sought costs – Financial disparity between the parties – No order as to costs. |
| Family Law Act 1975 (Cth) ss 45A, 102QB, 117 Family Law Rules 2004 (Cth) |
| CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 76 De Winter and De Winter (1979) FLC 90-605 Ebner & Pappas (2014) FLC 93-619; [2014] FamCAFC 229 Edwards v Noble (1971) 125 CLR 296; [1971] HCA 54 Lindon v The Commonwealth (No 2) (1996) 136 ALR 251; [1996] HCA 14 Marsden v Winch (2009) 42 Fam LR 1; [2009] FamCAFC 152 Miller & Harrington (2008) FLC 93-383; [2008] FamCAFC 150 Rice and Asplund (1979) FLC 90-725; [1978] FamCA 84 |
| APPELLANT: | Ms Jabbar |
| RESPONDENT: | Mr Gade |
| FILE NUMBER: | NCC | 2265 | of | 2015 |
| FIRST APPEAL NUMBER: | EAA | 82 | of | 2019 |
| SECOND APPEAL NUMBER: | EAA | 98 | of | 2019 |
| DATE DELIVERED: | 20 May 2020 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney (via video link) |
| JUDGMENT OF: | Strickland, Ainslie-Wallace & Tree JJ |
| HEARING DATE: | 24 April 2020 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATES: | 16 August 2019 5 September 2019 |
| LOWER COURT MNC: | [2019] FCCA 2186 [2019] FCCA 2500 |
REPRESENTATION
| THE APPELLANT: | Litigant in person |
| COUNSEL FOR THE RESPONDENT: | Mr Bithrey |
| SOLICITOR FOR THE RESPONDENT: | NLS Law |
Orders
The Application in an Appeal dated 20 April 2020 is dismissed.
Appeal EAA 82 of 2019 is dismissed.
Appeal EAA 98 of 2019 is dismissed.
There be no order as to costs.
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 Jabbar & Gade (No. 2) 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).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Numbers: EAA 82 of 2019 & EAA 98 of 2019
File Number: NCC 2265 of 2015
| Ms Jabbar |
Appellant
And
| Mr Gade |
Respondent
REASONS FOR JUDGMENT
On 16 August 2019 a judge of the Federal Circuit Court of Australia summarily dismissed an application for final parenting orders sought by Ms Jabbar (“the mother”) in relation to X who was born in 2006 and Y who was born in 2012, the children of her relationship with Mr Gade (“the father”).
Her Honour further made an order pursuant to s 102QB of the Family Law Act 1975 (Cth) (“the Act”) which prohibits the mother from instituting proceedings in any court having jurisdiction under the Act.
These orders are the subject of appeal number EAA 82 of 2019.
On 5 September 2019, the primary judge ordered the mother to pay the father’s costs of the parenting proceedings fixed in the sum of $7,794.50, and this order is the subject of appeal number EAA 98 of 2019.
The mother appeals both the orders made on 16 August 2019 and the costs order of 5 September 2019.
Background
It is helpful to include some background to the making of the challenged orders to give context to the appeal.
The parenting proceedings between the parties have a long history. The parties married in 2002 and separated in 2013. It seems that the litigation in relation to the children commenced in August 2015 when the father brought an application for parenting orders, in particular that the parties’ children live with him. On 31 August 2015 interim parenting orders were made in the Federal Circuit Court of Australia that the children live with the father, that he have sole parental responsibility for them and that the mother spend supervised time with the children. From 2015, the mother by numerous applications and appeals sought the return of the children to her care. None has been successful.
After a final hearing of the mother’s application for parenting and property settlement orders, on 11 May 2018 the primary judge made final parenting orders which had the effect of the children remaining living with the father, that he have sole parental responsibility for them, and that the mother spend no time nor communicate with the children.
An appeal by the mother to the Full Court against those orders was dismissed on 8 February 2019 and two applications for Special Leave to Appeal to the High Court of Australia were made and leave was ultimately refused.
While the appeal to the Full Court was pending, the mother by an Amended Application in a Case filed on 22 June 2018 sought orders that the children spend time with her for four hours each week with the father to pay for supervision of that time. That application was dismissed.
By an Initiating Application filed on 7 May 2019 (refiled as an Amended Application with a minor change as to the commencement of the order sought on 5 August 2019) the mother sought orders that she and the father have equal shared parental responsibility in relation to the children and that they live with her save for a day and night when, presumably they would see the father.
In response to that application, the father sought that the mother’s application be summarily dismissed and further sought an order pursuant to s 102QB of the Act which would in effect prohibit the mother from instituting proceedings under the Act.
The Appeals
Summary dismissal
The mother appears for herself in this appeal and has drawn the ground of appeal. It simply states that she and the children “are deprived of Justice”. To a small degree, her Summary of Argument illuminates her contentions which we will now address.
The primary judge erred in not permitting the mother to obtain and adduce evidence of a video on the father’s phone
Part of the evidence on which the father relied in his 2015 application seeking orders that the children live with him, was a video taken on his phone in 2013 which together with text messages sent to the father by the mother in 2015, was then relied on by the Court in coming to the conclusion that the mother was violent towards the children. The mother says this evidence was manufactured by the father and if the phone was produced and inspected, she would be able to prove that the father’s allegations against her which founded the original application were unsupported. She said in her submissions on the appeal that she had made extensive efforts through applications to the Court to locate the phone in order to have the contents interrogated so she could prove that the video was not genuine. She has not been successful.
Before the primary judge the mother sought to inspect documents produced in answer to various subpoenas that she had caused to be issued. Inspection was refused by her Honour who noted at [20] that the documents went “to the mother’s ongoing quest to obtain information about the whereabouts of a mobile phone”.
In her Summary of Argument the mother repeats her contention that the production of the phone used by the father was pivotal to her re-agitation of the Courts’ findings resulting in the children living with the father, and that fact coupled with other evidence would prove that she was a loving and capable mother.
Her Honour concluded:
52. The mother does not accept the court’s findings about the 2013 incident and the 2015 text messages but there is nothing to suggest that an examination of the father’s mobile phone or any media onto which he copied the 2013 video would result in this court coming to a different conclusion about whether the mother sent the text messages or whether the person depicted in the 2013 video assaulting [the oldest child] is the mother. The court’s reasons for coming to that conclusion are set out at length in the 2018 decision.
That conclusion was one well open to her Honour on the evidence before her.
Her Honour was considering whether the mother’s most recent application had no reasonable prospects of success. Part of that assessment involves a consideration of the evidence on which the application is to proceed (see Ebner & Pappas (2014) FLC 93-619 and Lindon v The Commonwealth (No 2) (1996) 136 ALR 251 (“Lindon”)). Here, the mother was attempting to find evidence to prove her contention. The mother did not have the evidence which she contends existed, but merely sought to inspect the documents anticipating that it might lead to the evidence. However, the primary judge had concluded that any such evidence was irrelevant to the parenting issue, and we can see no error by her Honour in that regard.
Error in identifying the applicable law
The mother contends that the primary judge relied on the wrong law in coming to her conclusion.
Her Honour regarded herself as exercising the power to summarily dismiss the Initiating Application pursuant to s 17A(1) of the Federal Circuit Court of Australia Act 1999 (Cth) (“the Federal Circuit Court Act”) and r 13.10 of the Federal Circuit Court Rules 2001 (Cth) (“the Federal Circuit Court Rules”) (at [62]). In fact, her Honour was not. Section 17A(5) of the Federal Circuit Court Act provides that where, as here, a court is exercising power under the Family Law Act 1975 (Cth), s 45A of that Act applies. However, the terms of the two sections are close to identical and the principles of law are the same, her Honour being required to consider whether the mother had no reasonable prospects of success in prosecuting her application for parenting orders. Her Honour’s reference at [46] to Lindon was entirely apt in reflecting the application of the necessary principles.
Thus while her Honour was wrong as to the source of power she was exercising, it was not material to the ultimate decision and this challenge is not made out (see De Winter and De Winter (1979) FLC 90-605).
The parenting orders are severe and unjust
There can be no doubt that the mother regards the orders of 11 May 2018 to be unfair and, indeed, her Honour noted at [49] that the mother contended that the orders were “extreme” and unjust.
It is important to understand that the mother’s appeal against the orders of
11 May 2018 was dismissed and Special Leave to Appeal was not granted. What the primary judge was deciding was whether the mother’s application had no reasonable prospects of success, and thus the effect of the orders, while undoubtedly harsh on the mother was not relevant to that determination.
Failure to afford sufficient weight to further evidence
The mother relied on evidence which was not before her Honour at the final hearing in 2017, namely a report from a Consultant Psychiatrist, Dr D, who examined her and offered an opinion about the mother’s mental health, a significant issue in the proceedings before the primary judge. Her Honour regarded the psychiatrist’s report of having little weight, primarily because it appeared from the report that Dr D had read neither the reasons for decision of May 2018 nor the report of the Single Expert who gave evidence in that matter.
Notwithstanding the report of Dr D, her Honour concluded that on the basis of the evidence filed by the mother, she was seeking to re-agitate the parenting issues determined in May 2018 save for her having modified her position as to the time the father would spend with the children in the event that they moved to live with her.
While not articulated as a ground of appeal, it is tolerably clear that the mother complains that the primary judge failed to give proper weight to that report and, had she, it would have persuaded her Honour that the mother’s application had some prospects of success.
The assessment of the evidence and whether it allows for the conclusion that the mother’s application had some prospect of success was one quintessentially for the primary judge and unless an appeal court considered that her finding was not reasonably available on the evidence, it will not interfere (see Edwards v Noble (1971) 125 CLR 296). That argument is not open here and no error has been demonstrated.
Conclusion as to this aspect of the appeal
Her Honour concluded at [62] that there was “considerable force” in the father’s submission that the mother had no reasonable prospect of success in pursuing the Initiating Application for further parenting orders.
Before finally determining whether the mother’s application should be dismissed, her Honour turned to consider whether by reference to the “rule” in Rice and Asplund (1979) FLC 90-725 (“Rice and Asplund”) the mother ought be permitted to re-agitate the parenting proceedings and through this lens, whether it is in the children’s best interests for there to be a reopening of the parenting proceedings. Simply put, her Honour was considering whether a sufficient change in circumstances existed to warrant a reopening of the parenting issues (see Miller & Harrington (2008) FLC 93-383 and Marsden v Winch (2009)
42 Fam LR 1).
Her Honour referred to the well-known principles that have derived from Rice and Asplund and concluded that none of the evidence filed by the mother supported any likelihood of the final parenting orders made in May 2018 being varied if there was a new hearing. Her Honour came to that conclusion notwithstanding the mother’s reliance on the opinion of the psychiatrist whose report had not been before her Honour during that earlier, final hearing.
Thus, both by reference to the principles relating to summary dismissal and those derived from Rice and Asplund, her Honour concluded that the mother’s application enjoyed no reasonable prospect of success. Whether or not the effect of the orders were harsh in this case, was not relevant to her Honour’s determination. On both of these bases then, her Honour dismissed the mother’s Initiating Application.
No error has been established.
The s 102QB(2)(b) Order
As we have said, this order prevents the mother from commencing proceedings in any court having jurisdiction under the Act.
Before making such an order, the Court must be satisfied that “a person has frequently instituted or conducted vexatious proceedings in Australian courts or tribunals” (s 102QB(1)(a) of the Act).
Her Honour set out the applicable law at [92] and stated:
To succeed with [the application to declare the mother a vexatious litigant] it is not enough for the father to show that the mother has filed a plethora of applications in this and other courts. [The father] must demonstrate that the mother has frequently instituted vexatious proceedings and the term “vexatious proceedings” is defined in s. 102Q [of the Act] as follows:
vexatious proceedings includes:
(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.
(Emphasis removed)
Additionally, s 102QB(6) of the Act says:
(6) For the purposes of subsection (1), the court may have regard to:
(a) proceedings instituted (or attempted to be instituted) or conducted in any Australian court or tribunal; and
(b) orders made by any Australian court or tribunal; and
(c) the person’s overall conduct in proceedings conducted in any Australian court or tribunal (including the person’s compliance with orders made by that court or tribunal);
including proceedings instituted (or attempted to be instituted) or conducted, and orders made, before the commencement of this section.
The resolution of the applicable test is one of fact finding. In this case, the undisputed evidence was that 20 applications had been filed by the mother commencing in October 2015, all of which were dismissed. Her Honour recorded that following the making of the final orders in May 2018, the mother brought six applications seeking parenting and property orders. All were dismissed (with one application then yet to be determined).
To that list must be added six appeals to the Full Court of the Family Court of Australia and six applications seeking Special Leave to Appeal to the High Court of Australia. All of these applications were or have since been dismissed.
The mother has not restricted herself to applications under the Act and has commenced proceedings against the father in the New South Wales District Court and Supreme Court of New South Wales. She has also made complaints to the board that regulates the father’s professional practice (at [80]–[88]).
Her Honour concluded:
114. I am comfortably satisfied that the mother has frequently instituted or conducted vexatious proceedings in Australian courts and tribunals and also comfortably persuaded that unless an order is made restraining the mother from filing further applications without leave she will continue [to] file such applications.
115. Not only does the mother’s relentless and obsessive conduct to date give rise to that concern, her submissions on 6 August 2019 also give rise to it.
As in relation to the order for summary dismissal, the mother’s ground of appeal is that she and the children have been “deprived of Justice”. In her oral argument she argued that given the original parenting orders were made on a foundation of manufactured evidence, as a mother, she could do no more than bring applications seeking to right the wrong done to her and the children by those orders.
The order, while harsh, was well founded in the evidence and no error in either her Honour’s articulation of the law nor its application is established and this aspect of the appeal has no merit.
Costs order
On 5 September 2019, on the father’s application, the primary judge made a costs order against the mother in the sum of $7,794.50 being the father’s costs in relation to the application for summary dismissal and for an order pursuant to
s 102QB of the Act. The amount of the costs was charged against any proceeds that the mother is to receive pursuant to property orders made on 11 May 2018.
It was generally acknowledged before her Honour that the mother’s financial circumstances were poor, she earning something between $20,000 and $30,000 per year. Certainly so against those of the father whose professional income is in the order of $300,000 per annum. Her Honour took into account that while the mother is to receive a property settlement of about $80,000, some earlier costs orders are charged against her receipt of that money and, her Honour noted, the mother would receive considerably less than $80,000.
Her Honour considered at [42] that the father’s application for a s 102QB order was an “entirely meritorious” one and the mother should bear the father’s costs of bringing it, as well as the costs of the application for summary dismissal given that the parenting application had no reasonable prospect of success and should not have been brought.
Her Honour’s reasons indicated that the father’s application was for an order for indemnity costs, or in the alternative, costs fixed by reference to the scale of fees referrable to the Family Law Rules 2004 (Cth) rather than, as her Honour noted, by reference to the scale of fees in Schedule 1 to the Federal Circuit Court Rules. In that event, her Honour herself arrived at an amount of costs referrable to the correct fee schedule and, fixed the costs in the amount ordered.
The mother’s appeal grounds contend that her Honour erred in making the costs order because: it operates to deprive her of justice; the primary judge “refused” to consider her long term financial hardship and the primary judge “refused” to consider the loss of her qualifications and her inability to obtain a “Working with Children” certificate.
None of these grounds are made out. The primary judge’s reasons demonstrate that she took into account each of these matters, weighing them in the determination of whether a costs order should be made. The essence then of the challenge is that her Honour failed to accept the mother’s arguments against making the order and that does not amount to error.
Conclusion
The appeals will thus be dismissed.
Application in an Appeal
The mother sought leave to adduce evidence in the appeal, being evidence which she asserted would demonstrate that the film taken on the father’s phone in 2013 and on which he relied to seek parenting orders in his favour, was not genuine. This issue, as we have indicated, sits at the heart of the mother’s ongoing applications for parenting orders and, again as we have said, she is convinced that once she has possession of the phone, she can prove that the parenting orders made in 2015 were made in error.
The primary judge refused to permit the mother to inspect documents produced to the Court in her pursuit of that evidence.
The capacity of the Full Court to accept further evidence on appeal is constrained and the evidence which the mother would have had us accept does not fall within those constraints and thus we refused the application (see CDJ v VAJ (1998) 197 CLR 172 at 201).
Costs of the Appeal
At the conclusion of the appeal hearing both parties made submissions as to the costs of the appeal. It was argued for the father that if the appeal was wholly unsuccessful, the mother should pay his costs of the appeal. The mother opposed any order for costs on the basis that she is impecunious, is not currently working and has no property or savings from which a costs order could be met.
Counsel for the father submitted that from the property settlement order made in the mother’s favour and after deduction of costs orders already made, some small amount of money remained from which the mother could meet at least part of the father’s claimed costs of the appeal.
We bear in mind that the usual position in proceedings under the Act is that each party shall bear his or her own costs (s 117(1) of the Act). However, the Court may make an order for costs if there are circumstances that justify it doing so (s 117(2)) and in this case, we note that the mother’s appeal has been wholly unsuccessful (s 117(2A)(e)).
Even though the mother’s appeal has been wholly unsuccessful we are of the view, given the substantial financial disparity between the earnings of the mother and the father, and the mother’s poor financial circumstances generally, that it would not be just for a costs order to be made in these proceedings.
I certify that the preceding fifty-seven (57) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Strickland, Ainslie-Wallace & Tree JJ) delivered on 20 May 2020.
Associate:
Date: 20 May 2020
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