Jabbar & Gade (No 22)
[2019] FCCA 2186
•16 August 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| JABBAR & GADE (No.22) | [2019] FCCA 2186 |
| Catchwords: FAMILY LAW – Vexatious Litigant Application – application by the father for an order pursuant to s.102QB of the Family Law Act that the mother be prohibited from instituting any further proceedings under the Family Law Act in a court having jurisdiction under that Act – where there is absolutely no doubt that the mother has frequently brought vexatious proceedings – where there is a high risk that unless restrained she will continue to do so – s.102QB order made. |
| Legislation: Family Law Act 1975 (Cth) ss.60CC, 102Q, 102QB, 102QC, 102QF Federal Circuit Court Act (Cth) s.17A |
| Cases: Gade & Jabbar (No.11) [2018] FCCA 1056 Jabbar & Gade [2017] FamCAFC 106 Lindon & Lindon (1996) 20ALJR 541 Official Trustee in Bankruptcy v Gargan (No.2) [2009] FCA 398 SPS & PLS (2008) FLC 93-363 Tabb & Tabb [2019] FamCAFC 22 |
| Applicant: | MS JABBAR |
| Respondent: | MR GADE |
| File Number: | NCC 2265 of 2015 |
| Judgment of: | Judge Terry |
| Hearing date: | 6 August 2019 |
| Date of Last Submission: | 6 August 2019 |
| Delivered at: | Newcastle |
| Delivered on: | 16 August 2019 |
REPRESENTATION
| The Applicant: | In person |
| Counsel for the Respondent: | Mr Bithrey |
| Solicitors for the Respondent: | NLS Law |
ORDERS
The mother’s application filed on 7 May 2019 is dismissed.
The mother’s amended application in a case filed on 5 August 2019 as to the orders sought at 4 and 5 is dismissed.
Pursuant to Section 102QB (2) (b) of the Family Law Act MS JABBAR is prohibited from instituting proceedings under the Family Law Act 1975 (Cth) in any Court having jurisdiction under that Act.
All outstanding applications filed by the mother are dismissed.
The father’s application for costs is adjourned to 4.15pm on 4 September 2019 for further consideration.
IT IS NOTED that publication of this judgment under the pseudonym Jabbar & Gade (No.22) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT NEWCASTLE |
NCC 2265 of 2015
| MS JABBAR |
Applicant
And
| MR GADE |
Respondent
REASONS FOR JUDGMENT
Introduction
I have two applications before me:
i)An application by the father for the mother’s application for final orders filed on 7 May 2019 to be summarily dismissed.
ii)An application by the father for an order pursuant to s.102QB of the Family Law Act that the mother be prohibited from instituting proceedings under the Family Law Act in a court having jurisdiction under the Act.
The mother opposes both applications.
Background
The mother and father have been in dispute about parenting arrangements for their children [X] born on … 2006 and [Y] born on … 2012 since August 2015. In November 2015 a property application was added to the mix.
A final hearing took place on 7, 8, 9, 10 & 11 August, 7 September and 18 October 2017 with a final short event on 19 March 2018 and on 11 May 2018 I handed down a decision and made final orders.
The parenting orders provided for the father to have sole parental responsibility for the children and for the children to live with him and spend no time with and have no communication with the mother.
The mother appealed both the parenting and property orders. The appeal was dismissed by the Full Court on 8 February 2019.
In March 2019 the mother made an application to the High Court for special leave to appeal the decision of the Full Court. I was informed by the father’s counsel on 6 August 2019 that to the best of his knowledge the application for special leave had not yet been determined.
On 22 June 2018 while the Full Court appeal was pending the mother filed an amended application in a case seeking, in addition to a stay of the 11 May 2018 orders, an order that the children spend time with her for four hours per week with the father to pay for supervision. That application was dismissed.
On 7 May 2019 the mother filed an Initiating Application in which she sought the following orders on both a final and interim basis:
1. Mother (Ms Jabbar) and Father (Mr Gade) have equal parenting rights for “Children” i.e., [X] DOB … 2006 and [Y] DOB … 2012.
2. That children will stay with mother (Ms Jabbar) every week from Sunday evening 4PM to Saturday morning 9AM.
On 21 June 2019 the father filed a response in which he sought an order that the mother’s application be dismissed.
I listed the dispute about whether the mother’s application should be dismissed for hearing on 6 August 2019.
On 5 August 2019 the mother filed an amended application in a case (sic) in which she sought the same parenting orders as above save that after 9AM she added the words “from the week commencing from 11 August 2019.”
Documents relied on
At the hearing on 6 August 2019 the mother relied on her application filed on 7 May 2019, her affidavit filed the same day, her affidavit filed on 24 June 2019 and her amended application in a case and affidavit filed on 5 August 2019.
The mother asked the court to have regard to the Written Submissions she had handed to the court on 25 June 2016 and they were marked as an exhibit.[1]
[1] Exhibit A
The father relied on his response and affidavit filed on 21 June 2019.
The summary dismissal hearing
I dealt with the two applications separately and heard the summary dismissal application first. As befitted the nature of the matter it proceeded by way of submissions. At the mother’s request she made submissions first. The father’s counsel then made submissions and the mother made some additional submissions.
The mother had issued subpoenas after she filed her initiating application on 7 May 2019 and partway through her submissions she sought leave to inspect those subpoenas.
The subpoenas were issued to:
i)Department of Immigration and Border Protection for details of the arrival and departure dates of the paternal grandmother and paternal grandfather from August 2015 to the present and their visa status in Australia and the arrival and departure dates of the father and the children from August 2015 to the present.
ii)The Indian High Commission for documents evidencing the issue and expiry dates of the Indian passports of the paternal grandmother and paternal grandfather and information about how many times they had left India, how long they stayed outside India and the name of their destination country.
iii)Town A School for all updating documents and records for [X] and [Y] from 2017 to the present.
iv)The Department of Human Services, Medicare Program (sic) seeking a full history of all medical services provided to [X] and [Y] by all recognised Medicare Australia providers including general practitioners, specialist practitioners and all other providers from August 2017 to the present.
v)Employer C Human Resources Division (sic) for all correspondence, documents, records, reports and writings in relation to the employment of the father from August 2017 to the present.
The subpoenas were of questionable relevance.
Insofar as they sought information about the paternal grandparents they appeared to relate only to the mother’s ongoing quest to obtain information about the whereabouts of a mobile phone.
The mother did not mention any concerns about the children’s health or safety in her recent affidavits indeed her current application would see the children spending time with the father each weekend and in any event the mother’s right to inspect these subpoenas is questionable given that the father has sole parental responsibility for the children and there is no order providing for the mother to obtain or be provided with school reports or medical records or the like.
Finally in the light of the affidavits filed by the mother in support of her application it is difficult to see the relevance of a subpoena to the father’s employer.
I was not prepared to allow the mother to “fish” in subpoena material to try to find something which might support her case in the absence of relevance being apparent from reading her affidavits and I refused to make an order permitting the mother to inspect the subpoenas.
The mother also made a request during submissions to be able to listen to the sound recording of proceedings in this court on 24 June 2016.
I did not have any recollection of what had happened on that day and my immediate response to the mother was that she could obtain a transcript of the proceedings. The mother replied that she had obtained a transcript and that she wished to listen to the sound recording as she had issues with the transcript.
I asked the mother what had happened on 24 June 2016 which made it significant but she did not clarify this and I did not accede to her request.
I have reviewed the file in the course of preparing this judgment and that reveals that 24 June 2016 was the day on which I heard an interim application by the mother to vary interim orders made on 31 August 2015.
I delivered my decision in respect of that application on 26 July 2016. The mother appealed the decision. The appeal was dismissed.[2]
[2] Jabbar & Gade [2017] FamCAFC 106
Three years have passed since then. There is nothing to suggest that it would be reasonable to allow the mother to now investigate the validity of the transcript or that this was relevant in respect to the applications before me on 6 August 2019.
The mother’s submissions
The mother submitted that the extreme nature of the 11 May 2018 orders (no time and no communication) meant that the court should be slow to dismiss her application to have the orders reconsidered.
She submitted that the court had made an error in accepting that the 2013 video produced by the father was authentic and that she had sent the text messages in 2015. This acceptance had led the court to make findings that the mother had been violent. The mother said that if the court made the order she had requested in her application in a case for the father to produce his mobile phone for examination there was a real prospect that she would be able to demonstrate that the court should not have accepted that the video was authentic or that the text messages were sent. It would follow that the finding that she had been violent would fall away and this would be a significant change of circumstances.
The mother further submitted that the finding that she had been violent had prevented her from obtaining a working with children’s clearance and that this had resulted in her employment being terminated and was impacting on her ability to obtain employment. She submitted that this should predispose the court to allow her to proceed with a fresh parenting application so that she had a chance to show that the finding that she had been violent was wrong.
The mother also relied on the fact that she had obtained a report from Dr D, a Consultant Psychiatrist.
The mother submitted that the order excluding her from the children’s lives had been made because the court accepted Dr E’s opinion that she was mentally sick and that there was no sign that her mental health condition would change. However Dr D expressed the view that she had “no mental disorder or illness at this stage” and that “there is [sic] no obvious presence of any distressing or harmful personality traits.”[3]
[3] Mother’s affidavit filed on 24 June 2019 Annexure A
Dr D further expressed the view that “there was no reason why [the mother] is unsafe or risky for her children on the basis of findings of my assessment.”
It was the mother’s case that the existence of this fresh evidence meant that the court should allow her to continue with her application.
The father’s submissions
The first submission by the father’s counsel was that a search by his instructing solicitor had not turned up any evidence that the mother’s special leave application had been determined by the High Court and that therefore this court was functus officio and could not entertain the application. He did not ask me to recuse myself and if I understand his submission correctly it was his case that this justified me summarily dismissing the mother’s application.
He did not refer me to any authority in that regard.
In the alternative he submitted that the mother had not produced any fresh evidence or demonstrated that anything had occurred since the hearing which made it likely that that the court would now make different parenting orders and that her application therefore had no reasonable prospects of success and should be summarily dismissed pursuant to s. 17A of the Federal Circuit Act and r. 13.10 of the Federal Circuit Rules.
The father’s counsel agreed that this segued into consideration of the Rule in Rice & Asplund[4] pursuant to which courts sometimes dismiss an application at a preliminary stage because there had been no change of circumstances or no new factor arising since the original orders were made.
[4] Rice & Asplund (1979) FLC 90-725
In that regard the father’s counsel referred me to Poisat & Poisat[5] in which the Full Court endorsed the validity of the Rule and to Tabb & Tabb[6] and Marsden & Winch[7] in which the Full Court reiterated that it was generally not considered in a child’s best interests for their parents to be repeatedly litigating about their care and that before the court allowed an application for a change to parenting orders to continue it should consider whether there were any changed circumstances which justified a further inquiry into the matter.
Discussion
[5] Poisat & Poisat (2014) FamCAFC 148
[6] Tabb & Tabb [2019] FamCAFC 22
[7] Marsden & Winch (2009) 42 FamLR 1
Taking the father’s points one at a time, I cannot be absolutely certain about whether the application for special leave has been disposed of. The father’s counsel thought that it had not; the mother remained silent about it.
I was not referred to any authority in support of the proposition put forward by the father’s counsel that if it had not been disposed of this court could not entertain the mother’s application.
Many years ago when I was sitting in Darwin I dealt without objection by either party with a fresh application for interim orders in a parenting matter when earlier interim orders I had made were the subject of an appeal which was yet to be determined. Counsel in that case may have been misguided in agreeing to this and wiser heads than mine might agree with the father’s counsel but I do not understand why this would mean that the mother’ s application would have to be dismissed, as opposed to being transferred to another judge, and neither party asked me to recuse myself.
The father’s second point was that the mother’s application had no reasonable prospects of success and should therefore be summarily dismissed pursuant to the power conferred by s. 17A of the Federal Circuit Act and r. 13.10 of the Federal Circuit Court Rules. He submitted that the mother could not show that anything had changed which made it likely that the court would make the orders the mother sought.
The decided cases emphasise that the power to summarily dismiss an application or a response should be exercised with great caution. In Lindon & Lindon Kirby J said as follows:
An opinion of the court that a case appears weak and such that it is unlikely to succeed is not, alone, sufficient to warrant summary termination. Even a weak case is entitled to the time of a court. Experience teaches that the concentration of attention, elaborated evidence and argument and extended time for reflection will sometimes turn an apparently unpromising cause into a successful judgment.[8]
[8] Lindon & Lindon (1996) 20ALJR 541
Such eloquent expressions of principal must however be considered in the context of the particular application before the court.
The mother is seeking to run again exactly the same application as she ran in 2017, namely that the children should live with her. The fact that she has modified her position about whether the father should spend time with the children and about whether she should have sole parental responsibility does not alter the fact that the mother is essentially attempting to run exactly the same case.
The mother’s submissions about why she should be allowed to re-litigate the parenting arrangements notwithstanding that she had ample opportunity to advance her case and test evidence during a lengthy trial were in summary that the orders were extreme and the outcome was unfair; that the findings about whether she sent the threatening text messages and assaulted [X] were wrong and that allowing an investigation of a mobile phone would make a difference to the findings about that issue; and that undue reliance was placed on the opinion of Dr E about her mental health and she now has a report stating that she does not pose a risk of harm to the children because of her mental health.
She also submitted that the findings the court made about text message and the assault and threats were preventing her obtaining a working with children’s certificate which had resulted in her employment being terminated and was therefore impacting on her ability employment and that for this a reason she should be allowed to file a fresh application about parenting arrangements.
The fact that the orders are extreme and that the mother considers the outcome unfair does not by itself sufficient justify allowing the mother to re-litigate the matter.
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 [X] is the mother. The court’s reasons for coming to that conclusion are set out at length in the 2018 decision.
I accept the submission by the father’s counsel that the mother’s submission that the outcome in May 2018 was based solely on Dr E’s report and his opinion about her mental health is wrong. The decision was based on the courts assessment of the totality of the evidence which included but was not limited to Dr E’s report.
The mother provided some new evidence in the form of a report from a psychiatrist but nothing in that report, especially when coupled with the mother’s submissions, suggests that it would cause the court to come to a different decision either about whether the children should spend time with her.
Dr D said that his assessment was based on an interview with the mother, an examination he conducted and papers and documents shown to him. He did not specify the papers and documents and there is nothing on the face of the report to indicate that Dr D had read the judgment and Dr E’s report. When this was raised with the mother she insisted from the bar table that she had given Dr E’s report to Dr D; the content of the report suggests otherwise.
The report on its face is little more than a recitation of the mother’s case and the mother’s grievances. It strongly suggests that the mother’s view of the matter and her view about her responsibility for events prior to and after separation remains exactly as it was when she was interviewed by Dr E and when she ran her case at trial.
Another difficulty for the mother is that she made submissions which undermined the report.
Dr D said as follows in his report:
There is no history suggestive of any mental health problem or any significant physical health problem in the past.
In her submissions in reply the mother said that she agreed with Dr E’s assessment of her mental health and his assessment that it was a long term condition which could not be healed and went on to say:
I’m mentally sick but for the sake of my children I’m taking treatment for that and after taking treatment it is the psychiatrist’s assessment he didn’t find any risk for children.
Dr D’s report does not refer to the mother receiving any treatment.
In regard to the mother’s last point, she provided two documents in relation to the working with children’s check and one in relation to the cancellation of her employment. They did not clearly support the mother’s contentions about why her employment was cancelled and why she had not been able to obtain a working with children’s clearance but even if they had, the submission by the father’s counsel that these issues are not relevant is correct. It would be an abuse of process for the mother to run fresh parenting proceedings simply in the hope of obtaining evidence to assist her to obtain a working with children’s check.
There is considerable force in the submission by the father’s counsel that the mother’s application should be dismissed pursuant to s. 17A and r. 13.10 because it has no reasonable prospects of success but it is also appropriate to consider whether the application should be dismissed at a preliminary stage pursuant to the Rule in Rice & Asplund.
A cogent explanation of the Rule in Rice & Asplund is contained in Tabb & Tabb[9] where the Full Court said as follows:
[9] Tabb & Tabb [2019] FamCAFC 22
It is not in dispute that by the time the adjourned hearing took place the father understood that his Honour’s reference to the principles in Rice & Asplund is to remarks made by Evatt CJ in that case at 78,905 – 78,906:
The principles which, in my view, should apply in such cases are that the court should have regard to any earlier order and to the reasons for and the material on which that order was based. It should not lightly entertain an application to reverse an earlier custody order. To do so would be to invite endless litigation for change is an ever present factor in human affairs. Therefore, the court would need to be satisfied by the applicant that … there is some changed circumstance which will justify such a serious step, some new factor arising or, at any rate, some factor which was not disclosed at the previous hearing which would have been material …
Evatt CJ continued:
These are not necessarily matters for a preliminary submission, but they are matters that the judge should consider in his reasons for decision. It is a question of finding that there are circumstances which require the court to consider afresh how the welfare of the child should best be served. These principles apply whether the original order is made by consent or after a contested hearing. The way they apply and the factors which will justify the court in reviewing a custody order will vary from case to case.
The rule is a manifestation of the best interest principle and founded on the notion that continuous litigation over a child or children is not in their interests (Langmeil & Grange [2013] FamCAFC 31).
The Full Court went on to say:
As to the application of the rule, the Full Court in Marsden v Winch (2009) 42 FamLR 1 said:
Nevertheless, there are significant changes that occur and which do require a court to reconsider decisions previously made. Whether in a particular case a court should be willing to embark upon another hearing concerning the child and parent, or whether to do so would itself be demonstrably contrary to the best interests of the child, is a decision to be made in each particular case. How is that decision to be made? The court must look at:
(1) The past circumstances, including the reasons for the decision and the evidence upon which it was based.
(2) Whether there is a likelihood of orders being varied in a significant way, as a result of a new hearing.
(3) If there is such a likelihood, the nature of the likely changes must be weighed against the potential detriment to the child or children caused by the litigation itself. Thus, for example, small changes may not have sufficient benefit to compensate for the disruption caused by significant re-litigation.
Although the provisions of Part VII of the Family Law Act 1975 (Cth) (“the Act”) which govern determination of the applications before his Honour have, subsequent to Rice & Asplund, undergone significant amendment, there is no doubt that the principles established in that case and the subsequent line of authority applied to these proceedings.
Proceedings concerning [X] and [Y] commenced in August 2015. A lengthy trial took place and comprehensive reasons for decision were given.[10] The matter went on appeal and the appeal was dismissed.
[10] Gade & Jabbar (No.11) [2018] FCCA 106
The mother has not filed any material which establishes that there is any likelihood of the orders being varied if a fresh hearing was conducted. The high point of her case was that she had obtained a psychiatric report but nothing in that report suggests that it would be likely to result in the orders being reconsidered. The mother undermined it by her assertions at the bar table but even if I were to accept that this was hyperbole flowing from despair it does not alter the fact that the report does not assist her.
The outcome in this matter was an extreme one but absent very clear evidence that there might be a different outcome or a variation of the orders if another hearing was conducted it would not be in the children’s best interests to allow the proceedings to be run again.
This would entail expense to the father, stress for the father (because court proceedings are inevitably stressful and worrying and the mother has a habit of filing endless applications and there is nothing to suggest that this would not happen during a fresh round of proceedings) and disruption for the children who would have to be interviewed again.
This case has also consumed a vast amount of court time and as Warnick J said in SPS & PLS:
I opine that the public interest in the finality of litigation is at least partly derived from a desire to avoid the public expense of subsequent hearings and the imposition of them on court time.[11]
[11] SPS & PLS (2008) FLC 93-363
If the mother’s case had some prospects of success or some sign of merit then the fact that it had already consumed an enormous amount of court time would have to be disregarded, because the best interests of the children must come first, but there is absolutely nothing to suggest that her case has any prospects of success or that requiring the father to take part in further stressful and prolonged litigation or the father and children to be re-interviewed would be in the children’s best interests and I intend to dismiss the mother’s applications for parenting orders.
The s. 102QB application
The s. 102QB application was also heard by way of submissions.
The father’s counsel sought an order pursuant to s.102QB (2)(b) that the mother be prohibited from filing any further applications under the Family Law Act in a court having jurisdiction under the Act. In oral submissions he submitted that s. 102QB (2) (a) was an additional basis on which the court could justify dismissing the mother’s application for parenting orders.
By way of general background the father commenced proceedings on 24 August 2015 and interim parenting orders were made on 31 August 2015. Since then the mother has filed a flood of applications in this court. In an appeal decision delivered in 2017 Justice Ryan aptly put it this way:
Almost as soon as the ink was dry on the orders of 31 August 2015, an unbelievable array of applications to change the orders, contempt and contravention applications, appeals and associated applications were unleashed. Only a small number of applications were commenced by the father.[12]
[12] Jabbar & Gade [2017] FamCAFC 106 at paragraph 5
The father provided the following history of the applications filed by the mother:[13]
[13] Father’s Affidavit filed 21 June 2019
i)15 October 2015 - an application in a case seeking the return of the children to her care.
ii)17 February 2016 - an application in a case seeking that the children be returned to her care.
iii)4 April 2016 – an application in a case seeking a change to the parenting orders.
iv)13 April 2016 – a contravention application.
v)5 July 2016 - an application in a case seeking an order that the children be returned to her care.
vi)7 July 2016 – an application in a case seeking a recovery order in relation to the children.
vii)22 July 2016 – a Contempt application.
viii)29 August 2016 – a Contempt application
ix)15 September 2016 – a stay application in respect of dismissal of orders made on 12 September 2016.
x)29 September 2016 – an application in a case seeking to spend time with the children at school and seeking to communicate with them by telephone.
xi)25 January 2017 – a stay application in respect of orders made on 20 December 2016.
xii)9 March 2017 – a contravention application.
xiii)28 March 2017 – an application for the Judge to disqualify herself and for the proceedings to be stayed pending hearing of an appeal.
xiv)10 April 2017 – an application for the Judge to disqualify herself and for the proceedings to be transferred from the Newcastle Registry.
xv)28 May 2018 - an application to have the Final Orders made on 11 May 2018 suspended.
xvi)22 June 2018 – an amended application in a case seeking to spend time with the children for four hours per week supervised.
xvii)14 September 2018 – an application for a stay of further property orders made on 4 September 2018.
All of these applications were dismissed. On a minority of occasions the dismissal was due to the mother withdrawing the applications albeit only after they had been served on the father and been the subject of at least one court appearance but the remainder were dismissed by the court.
The mother filed appeals to the Full Court of the Family Court on 30 March 2016, 4 August 2016, 27 March 2017 and 21 April 2017. These appeals were dismissed on 30 May 2017. She filed an appeal to the Full Court in September 2018 in respect of interim property orders which resulted in the orders being varied but was otherwise dismissed. She filed an appeal to the Full Court against the final orders made on 11 May 2018. That appeal was dismissed on 8 February 2019.
On 20 June 2017 the mother filed four applications for Special Leave to appeal to the High Court from the 30 May 2017 decision of the Full Court. These applications were dismissed on 6 September 2017. In March 2018 she filed an application for special leave to appeal to the High Court from the Full Court decision of 8 February 2017. As far as anyone is aware that Special Leave application is yet to be decided.
This year the mother has filed the following applications:
i)7 May 2019 – an application seeking both final and interim orders that the parties have equal parenting rights for the children and that they live with the mother from Sunday to the following Saturday and the father from Saturday to Sunday.
ii)24 June 2019 - an application in a case seeking orders for the father to produce his phone for forensic examination and asking that the court refer “the matter” to the DPP for further investigation.
iii)5 August 2019 - an amended application in a case seeking, in addition to the orders previously sought, interim orders that the parties have equal parenting rights and that the children live with the mother from Sunday to Saturday and the father from Saturday to Sunday commencing on 11 August 2019, that the father pay the mother spousal maintenance of AUD 2,250.00 per week, that the father pay the mother AUD 2,040.00 per week for the maintenance of the children, that the mother be given access to the audio recording of 24 June 2016, that the mother be allowed to inspect the subpoenas produced pursuant to requests issued on 10 July 2016 and that the property orders made on 11 May 2018 not be executed pending the hearing of her application made on 7 May 2019.
For reasons given above I intend to dismiss applications for parenting orders contained in the application filed on 7 May 2019 and the interim application field on 5 August 2019. The other applications filed by the mother this year have yet to be determined.
The mother has also commenced proceedings in other courts.
On 21 June 2017 the mother filed a Statement of Claim in the District Court of New South Wales seeking damages from the father for personal injury (battery).
On 21 July 2017 she filed a Statement of Claim in the District Court of New South Wales seeking that the father be convicted of or pay damages for committing perjury.
On 3 August 2017 she filed a Statement of Claim in the District Court seeking that the father be convicted of tampering with evidence. She filed a further statement of claim on the same day seeking that the father be convicted of perjury.
All four Statements of Claim were dismissed by the District Court on 15 September 2017.
On 5 July 2017 the mother filed a Statement of Claim in the Supreme Court of New South Wales claiming $3000,000 (?$3m). Under the heading ‘Pleading and Particulars’ there was a lengthy dissertation commencing with “Abuse of System.”
I acknowledge that the mother may since have amended the pleadings.
The Supreme Court proceedings were listed for final hearing for three days commencing on 24 May 2019. The mother’s solicitor ceased to act for her on the morning of hearing. The hearing was adjourned and the matter is listed in December 2019 for allocation of another hearing date.
Finally after proceedings commenced in 2015 the mother made two complaints about the father, who is a health care worker because he had been convicted of assaulting the mother. The mother prevaricated at trial about whether she had made the second complaint but then conceded that she had.[14]
[14] Gade & Jabbar (No. 11) (2018) FCCA 1056
The father has been put to cost in instructing solicitors and sometimes counsel to deal with all of the applications filed by the mother in this and other courts. He has also frequently been required to appear personally in court and he appeared personally at the hearing on 5 August 2019 which took about an hour and three quarters. He seeks to be relieved from endlessly dealing with the mother’s applications by way of the court making an order pursuant to s.102QB.
The applicable law
S. 102QB relevantly provides as follows:
(1) This section applies if a court exercising jurisdiction in proceedings under this Act is satisfied:
(a) a person has frequently instituted or conducted vexatious proceedings in Australian courts or tribunals; or
(b) [not relevant].
(2) The court may make any or all of the following orders:
(a) an order staying or dismissing all or part of any proceedings in the court already instituted by the person;
(b) an order prohibiting the person from instituting proceedings, or proceedings of a particular type, under this Act in a court having jurisdiction under this Act;
(c) any other order the court considers appropriate in relation to the person.
Note: Examples of an order under paragraph (c) are an order directing that the person may only file documents by mail, an order to give security for costs and an order for costs.
(6) (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.
If the mother is declared a vexatious litigant as proposed by the father she will need to apply to the court pursuant to s. 102QE for leave to issue proceedings and she will be prohibited from serving a copy of the application on the father without leave of the court.
To succeed with his application it is not enough for the father to show that the mother has filed a plethora of applications in this and other courts. He must demonstrate that the mother has frequently instituted vexatious proceedings and the term “vexatious proceedings” is defined in s. 102Q 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.
If I am satisfied that the mother has instituted vexatious proceedings and that they have been instituted frequently I must then decide whether in the exercise of my discretion I should make an s. 102QB order.
In Pencious & Searle the Full Court included the following passage from a decision of Perram J in Official Trustee in Bankruptcy v Gargan (No 2) [2009] FCA 398 and I include it here because it is a lengthy and eloquent exposition of the matters I need to bear in mind in determining the current application. His Honour said as follows:
2.A comprehensive explanation of what makes a proceeding vexatious is difficult to proffer for the boundary between the persistent and over-zealous on the one hand, and the vexatious on the other, may at times be indistinct. However, the following principles are, at least, well-established. First, the making of such an order is an extreme remedy depriving its object of recourse to the enforcement of the law which is every citizen’s ordinary right. It is, therefore, not lightly to be made.
3.Secondly, the purpose of the order is not to impose condign punishment for past litigious misdeeds; it serves instead to shield both the public, whose individual members might be molested by vexatious proceedings, and the Court itself, whose limited resources and needs must be carefully managed and protected from the expense, burden and inconvenience of baseless and repetitious suits.
4.Thirdly, as might naturally be expected, such a severe power is not enlivened by the mere single occurrence of a vexatious claim. To err is human and transient lapses of judgment, even serious ones, may be found in the most reasonable of places. Instead, the power to make the order is conditional upon the litigant having commenced not only a single vexatious proceeding but also upon having commenced similar such proceedings in this Court or in other Australian courts.
5.Fourthly, the qualities of vexation to which O 21 is addressed are to be found, as the terms of r 1(1) show, in the commencement by the litigant of proceedings which lack reasonable grounds and where the litigant’s institution of such proceedings may fairly be said to be both habitual and persistent.
6.Fifthly, whether a proceeding is instituted without reasonable grounds is a different question to, although not wholly disconnected from, the inquiry into a proceeding’s legal merits. The wheat, no doubt, must be separated from the chaff but in this area the question is whether what is before the Court contains any wheat at all. Although, often enough, no great guidance is obtained by exchanging one formula of words with another, it will be usually of some assistance, limited perhaps, to ask whether the issues brought to the Court for determination are manifestly hopeless or devoid of merit. It is, in that context, important to distinguish the difficult from the ridiculous and the unlikely from the hopeless.
7.Sixthly, although the ways in which unreasonable grounds may manifest themselves are myriad, one form often to be found in the baggage of the vexatious is a failure, often a refusal, to understand the principles of finality of litigation which rescue court and litigant alike from a Samsara of past forensic encounters.
8.Seventhly, it is the related quality of repetition which underpins, in part, a need for the institution of the proceedings to deserve the appellations habitual and persistent. The litigant’s conduct will be habitual where the commencement of proceedings occurs as a matter of course when appropriate conditions for their commencement are present as was explained by Roden J in Attorney-General v Wentworth (1988) 14 NSWLR 481 at 492. That formulation may not wholly explain the litigant who commences proceedings on any occasion and without the presence of any conditions, whether appropriate or otherwise. In such cases, the idea of constant repetition driven by habit and symptomatic of an inability not to engage in the behaviour may be more useful. Persistence, on the other hand, generally suggests stubborn determination but, in the context of the vexatious, carries with it the capacity to endure failure beyond the point at which a rational person would abandon the field.
9.Eighthly, each of these notions – the want of reasonable grounds, habitual institution and persistent institution – are to be gauged objectively. But this does not mean that a litigant’s own protestation as to his or her own mental state is irrelevant; frequently enough, the vexatious are betrayed out of their own mouths. Rather, the need for objective determination protects courts from the vexatious litigant who is genuinely, but misguidedly, persuaded as to the correctness of his or her own conduct.
10.Ninthly, the power to make the order arises when proceedings commenced in the way described are found to exist. But the notion of a proceeding is a broad one including a substantive proceeding directed at the attainment of final relief and collateral applications within such a proceeding; further, it extends outside the proceeding itself and embraces appeals therefrom and applications which, whilst not made in the proceeding, are properly to be seen as collateral thereto – so much flows from the definition of proceeding in s 4 of the Federal Court of Australia Act 1976 (Cth).
11.Tenthly, other proceedings commenced before bodies which are not courts, such as the Administrative Appeals Tribunal, are not directly pertinent to the existence of the power but may nevertheless throw light on the vexatious nature of proceedings before the Court; so too, the existence of a body of such administrative litigation may have relevance to the question of whether the Court’s power to make the order, once enlivened, should be exercised.
12.Finally, once it is concluded that the Court’s power to prevent a litigant from commencing or pursuing proceedings has been enlivened, the considerations germane to the exercise of that power are unconfined. However, the factors which will be relevant are informed by the protective purpose which the order serves. Where a litigant displays insight into their previous litigious history this will, no doubt, be relevant for it will suggest – although not determine – a diminution in the risk posed to the public. On the other hand, the manner in which a litigant conducts herself in her affairs generally is also capable of throwing light on whether the commencement of further vexatious proceedings is likely. Those general affairs include the litigant’s defence to the proceedings by which the order restraining him is sought. Because of the protective nature of the jurisdiction it is also relevant to know the extent of the damage and inconvenience the litigant’s forays into the courts have caused, pecuniary or otherwise.
Discussion
I am comfortably satisfied that the majority of the applications the mother has filed seeking that the children be returned to her care or that the children live with her, accompanied as they were on every occasion prior to the commencement of the final hearing with a proposal that the father only be permitted to spend supervised time with the children, were vexatious.
Into this category I would put the mother’s applications in a case seeking parenting orders filed on 15 October 2015, 17 February 2016, 5 July 2016, 7 July 2016, 29 September 2016, 22 June 2018, 7 May 2019 and 5 August 2019. I have excluded the application in a case filed on 4 April 2016 which was the subject of an interim hearing and a written judgment.
The applications were accompanied by very brief affidavits in support which often raised no new issues and often did not even include any evidence which might persuade the court to make the orders sought, and in making submissions, if the applications went to hearing, the mother repeated the same complaints over and over again.
Two of the applications (5 July 2016 and 7 July 2016) were filed when a decision was pending in respect of the mother’s interim parenting application filed on 4 April 2016 which had been heard on 24 June 2016. The decision was handed down on 26 July 2016.
The applications had no prospects of success. They demonstrated, to use Perram’s J’s words:
…a failure, often a refusal, to understand the principles of finality of litigation which rescue court and litigant alike from a Samsara of past forensic encounters.
To demonstrate this point at greater length I will refer to the application the mother filed on 22 June 2018 at the same time as she applied for a stay of the 11 May 2018 orders which provided for the children to spend no time and have no communication with her.
The mother sought an order that [X] and [Y] spend time with her for four hours per week and that the father pay the cost of the supervised visits.
If the mother had been spending time with the children immediately prior to the judgment then this application might, in tandem with a stay application, have had some merit. However the mother’s time with the children had ceased by court order on 23 March 2017 following the release of the family report and then in May 2018 a no time order was made.
The application was accompanied by a five paragraph affidavit which contained no evidence at all which might have persuaded the court to make the parenting orders sought.
This application in case (as to both the parenting orders and the stay) was dismissed on 2 July 2018.
The parenting applications I itemised in paragraph 96 span the period October 2015 to August 2019 and in my view these alone establish that the mother has frequently made vexatious applications. However there is more.
The mother’s applications for contempt also fall into the category of applications which were brought without reasonable grounds. They had to be listed for hearing and moreover the court had to find time to hear them urgently to ensure that they were heard prior to the final hearing commencing.
The contempt applications were dismissed on 27 July 2016.[15] The mother failed to establish a prima facie case in respect of either application and she insisted on running them to hearing despite their flimsy nature and the fact that the issues she raised in the applications could have been (and indeed were) the subject of inquiry at the final hearing of the parenting matter which was due to commence a little over a week later.
[15] Jabbar & Gade (No. 9) 2017 FCCA 3403
The mother pressed on with them despite being repeatedly urged by the court to seek legal advice and reconsider her position. The father applied for costs when the applications were dismissed and I made a costs order against the mother.
I am satisfied that the mother pursued these applications without reasonable ground and indeed it is very difficult to avoid the conclusion that she conducted these proceedings so as to harass and annoy the father.
The mother has made repeated applications to the court concerning the father producing his mobile phone. Her application in a case filed on 24 June 2019 for access to the phone and for “the matter” to be referred to the DPP for further investigation (an application which she referred to during the hearing on 5 August 2019) are in my view clearly vexatious. The mother continues to claim that examination of the phone might produce evidence which would lead to the findings I made about the text messages and the assault and threats depicted in the video were in error but this demonstrates a wilful refusal by the mother to consider the reasons for my findings.
The orders the mother sought in her application in a case filed on 5 August 2019 for child support and spousal maintenance were instituted without reasonable ground. The children are not in the mother’s care and even if she had been successful in having them placed in her care by the court the appropriate step would have been for her to make an application to the Department of Human Resources for a child support assessment.
The mother has no proceedings on foot which would justify an application for interim spousal maintenance.
In determining whether the mother has frequently instituted or conducted vexatious proceedings I can also have regard to proceedings commenced or instituted in other courts or tribunals and the mother filed Statements of Claim seeking damages from the father in respect of matters which were also relevant in the family law proceedings not just in one other superior court but in two. This has a strong flavour of being vexatious in that they were instituted to harass or annoy the father.
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 file such applications.
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.
The mother protested that her applications for the children to live with her were not repetitious and that she had not understood that she could file an amended application in case rather than a fresh application.
This causes me to be gravely concerned that the mother may think that if she files on application and then keeps amending it in some minor way (and the difference between the interim parenting orders she sought in her initiating application filed on 7 May 2019 and the orders she sought in the application in a case filed on 5 August 2019 was the insertion of the words “from 11 August 2019”) that she cannot be considered to be engaging in frequent vexatious litigation.
She also said that she should be allowed to file further applications because the effect of the current parenting orders was that she could not go to the Church and the orders were therefore an attack on her personal freedom.
The mother ended her submissions by laying down this ultimatum: that if the court ordered that the father produce his phone for forensic analysis she would file no further applications, adding that she wouldn’t need to file any.
The mother’s submissions give rise to grave concern that the mother has no intention of stopping.
An s. 102QB order will protect the father from being required to deal with further applications but the courts time is also precious. In Perram’s J’s judgment he referred to the need to protect the court
…whose limited resources and needs must be carefully managed and protected from the expense, burden and inconvenience of baseless and repetitious suits.
If an s. 102QB order is made the mother can still make an application for leave to institute proceedings but there are some safeguards against the court’s time being unduly consumed by further vexatious applications. S. 102QF(2) & (3) provide that if it considers it appropriate:
The court may dismiss the application without oral hearing (either with or without the consent of the applicant)
The court may make an order under this section in Chambers
I intend to make the order pursuant to s.102QB (2)(b) sought by the father.
I intend to make it to cover all proceedings under the Family Law Act in the knowledge that this will prevent the mother bringing an application in regard to property as well as parenting.
The mother has not to date filed many applications in regard to property, indeed it is the father who has filed most if not all of them and in most cases he has done so because of the mother’s failure to comply with orders concerning payment of the mortgage and rates and since the orders were made on 11 May 2018 because of the mother’s failure to cooperate with him obtaining a valuation of a property at Property A to facilitate the final orders being carried into effect.
The mother by her conduct does not accept the property decision any more than she accepts the parenting decision. One of her applications in her amended application in a case filed on 24 June 2019 was that the property orders made on 11 May 2018 not be executed until final disposition of her application filed on 7 May 2019.
That application can be dismissed given that I intend to dismiss her application for parenting orders but given the mother’s dogged persistence in trying to change or avoid complying with orders with which she does not agree there is an unacceptable risk that if she is not restrained from bringing further proceedings under the Family Law Act and is simply restrained from bringing further parenting proceedings, the court and the father will be faced with vexatious applications by the mother in relation to property.
Remaining applications
In her amended application in a case filed on 5 August 2019 the mother sought an order that Orders 9-13 of the 11 May 2018 orders not be executed until final disposal of her application dated 7 May 2019. I have finally disposed of that application which sought only parenting orders and I therefore intend to dismiss that part of her application in a case.
She also sought orders regarding production of the phone, payment of spousal maintenance and child maintenance, inspection of subpoenas and access to a sound recording.
I have given consideration to whether I should dismissing these applications pursuant to s.102QB (2) (a).
The father did not seek such an order in his documents and the issue was not formally addressed on 6 August 2019 and I am mindful of s.102QB (4). However once the parenting application is dismissed none of these orders have any stand-alone utility and to avoid the need to devote further court time to the matter and to avoid any further cost being incurred by the father, I intend to dismiss all outstanding applications filed by the mother.
The father’s response contains an application for costs. I cannot deal with that without hearing further submission about quantum and merit and I will adjourn that application to 4.15pm on 4 September 2019 for further consideration.
In his Response the father sought that pursuant to s.102QC a certificate issue to him in respect of the s. 102QB order s.102QC provides that the father may request such a certificate from an appropriate court official. I do not need to order that he receive one nor do I need to order that an appropriate court official provide that certificate to the father. If he requests one then pursuant to s. 102QC the court official must issue it.
I certify that the preceding one hundred and thirty three (133) paragraphs are a true copy of the reasons for judgment of Judge Terry
Date: 16 August 2019
Key Legal Topics
Areas of Law
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Family Law
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Civil Procedure
Legal Concepts
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Summary Judgment
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Res Judicata
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Costs
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Jurisdiction
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Abuse of Process
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