Manellis & Andreou (No 3)
[2022] FedCFamC2F 1281
Federal Circuit and Family Court of Australia
(DIVISION 2)
Manellis & Andreou (No 3) [2022] FedCFamC2F 1281
File number: PAC 2845 of 2021 Judgment of: JUDGE MURDOCH Date of judgment: 6 September 2022 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Summary dismissal – Applications to re-litigate interim parenting proceedings – Where the applications are an abuse of process – Applications summarily dismissed. Legislation: Family Law Act 1975 (Cth) s 45A
Federal Circuit and Family Court of Australia Act 2021 (Cth) s 67
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 1.04, 10.09
Federal Circuit and Family Court of Australia, Central Practice Direction - Family Law Case Management, 1 September 2021, pars 5.21, 5.22
Division: Division 2 Family Law Number of paragraphs: 66 Date of hearing: 6 September 2022 Place: Parramatta The Applicant: Litigant in person Solicitor for the Respondent: Mr Hawach Solicitor for the Independent Children's Lawyer: Mr Bourne ORDERS
PAC 2845 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR MANELLIS
Applicant
AND: MS ANDREOU
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
JUDGE MURDOCH
DATE OF ORDER:
6 SEPTEMBER 2022
THE COURT ORDERS THAT:
1.The Application in a Proceeding filed by the Mother on 17 January 2022 is dismissed.
2.The Application in a Proceeding filed by the Mother on 15 February 2022 is dismissed.
3.Within 2 months, the Mother shall pay the costs of the Independent Children’s Lawyer in relation to the preparation for and attendance at the hearing on 6 September 2022 in the sum of $1,320 with such costs not to be treated as a contribution by the Mother to the overall costs of the Independent Children's Lawyer in relation to this proceeding.
4.The Father’s oral application for costs made today is adjourned to 10:00 am on 7 September 2022.
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 a pseudonym Manellis & Andreou (No 3) has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
JUDGE MURDOCH
INTRODUCTION
The father initiated these proceedings on 26 May 2021, seeking interim and final parenting orders with respect to the children of the relationship:-
·Y, born in 2012;
·X, born in 2014; and
·Z, born in 2017.
Listed before me for determination today are two Applications in a Proceeding filed by the mother. The first application was filed on 17 January 2022 and the second application was filed on 15 February 2022.
By way of his Responses filed on 28 January 2022 and the further Response filed on 4 March 2022 the father seeks that both the applications filed by the mother be summarily dismissed.
The Independent Children's Lawyer, for the most part, save as to a few issues, agrees that the applications filed by the mother should be summarily dismissed. There is an issue with respect to the transfer of the proceedings to Division 1 of the Federal Circuit and Family Court of Australia that I will address later in these reasons.
LITIGATION HISTORY
This matter has consumed considerable Court resources since its inception. A detailed history of the litigation would be voluminous. The mother, to date, has filed at least six interim applications, two review applications and an appeal to the Appellant Division of Division 1 from interim Orders made after an interim defended hearing.
A brief overview in the context of the two applications before me today is as follows.
On 5 July 2021, the mother filed an Application in a Case, seeking that:
·the matter be listed on an urgent and ex parte basis;
·a recovery order be issued for the children;
·a publication order be made;
·a Child Inclusive Conference be ordered;
·an Independent Children's Lawyer be appointed;
·the paternal grandparents execute an undertaking and thereafter the children spend time with the father, supervised by them;
·the father enrol in a number courses; and
·the father be restrained from consuming alcohol whilst having time with the children or for 12 hours prior.
The matter was not listed on an ex parte urgent basis.
On 6 July 2021, the mother filed an Application for Review seeking to review the decision to not list her application with urgency.
On 15 July 2021, Orders were made pending further Order that up and to 28 July 2021 the father be restrained from attending the former matrimonial home and that, by consent, the Review Application be dismissed.
On 28 July 2021 Orders were made pending the interim hearing that, broadly, the children spend time with the father each Saturday from 9:00 am until 5:00 pm with changeover between the parents to occur at McDonald’s at Suburb W, the children have telephone time with the father each Wednesday between 6:00 pm and 6.30 pm, and that the parties attend a Child Inclusive Conference.
Prior to the matter being heard by way of an interim hearing on 11 August 2021 the mother filed a further Application in a Case, seeking, again, that:
·the matter be listed on an urgent ex parte basis;
·Orders 1 to 3 of the Orders made on 28 July be stayed pending the determination of the mother’s Application in a Case and Application for Review;
·those said Orders be reviewed;
·the mother be granted exclusive occupation of the former matrimonial home;
·the children live with her and spend time, again, with their father each Saturday from 9:00 am until 5:00 pm, supervised by the paternal grandparents, changeovers occur at McDonald’s Suburb W; and
·the children have telephone time as had been ordered by the Court on 28 July 2021.
On that same date, the mother filed an Application for Review of Orders 1 to 3 made on 28 July 2021.
On 17 August 2021 Orders were made pending further order that the children live with the mother and that Order 1 of the Orders made on 28 July 2021 as to the time the children were to spend with the father be stayed pending the hearing of the mother’s Application for Review.
On 2 September 2021, Orders were made by Judge Obradovic, discharging the stay of Order 1 of the Orders made on 28 July 2021.
The mother, again, on 21 September 2021, filed a further Application in a Case, seeking, again, that:
·the matter be listed on an urgent and ex parte basis;
·Orders 1, 2, 4, 5, 6, 7, 8 and 9 of the Orders made on 28 July be stayed and reviewed;
·the children spend time with the father from 10:00 am until 6:00 pm, supervised by the paternal grandparents and maternal grandparent or other persons as agreed;
·the children have supervised telephone time with the father each day for 20 minutes;
·the father undertake a mental health assessment; and
·the Child Inclusive Conference appointments and Orders be cancelled.
On 24 September 2021, the Child Inclusive Conference Memorandum was released to the parties. Such memorandum noted that the mother did not facilitate the children’s participation in that conference.
On 7 October 2021 Orders were made dismissing the mother’s Application for Review filed 11 August 2021 and the children were directed to attend upon the Court Child Expert for the preparation of the Child Impact Report. Some 13 days later, being on 20 October 2021, the mother filed a further Application in a Proceeding, seeking, again, that:
·the matter be listed urgently and on an ex parte basis;
·the mother be granted sole parental responsibility;
·an injunction to prevent the parties from communicating about the children and from the father attending upon the former matrimonial home;
·the children spend time with the father each Saturday from 10:00 am to 6:00 pm supervised by the paternal grandparents, maternal grandparent, or other persons as agreed;
·the children have supervised telephone time with the father each day for 20 minutes; and
·again, that the father undertake a mental health assessment.
The Child Impact Report was released to the parties on 29 October 2021.
On 5 November 2021, Orders were made dismissing the mother’s Applications in a Proceeding and directing the father to file one Application in a Proceeding and the mother to file one Response thereto. On 15 November 2021, in accordance with those directions, the father filed the Application in a Proceeding, seeking that:
·the Orders made on 28 July 2021 be discharged;
·the children live with the father;
·the children spend time with the mother each Sunday from 10.30 am until 5.30 pm supervised by a contact centre or a private professional supervisory service;
·a recovery order issue if the children were not returned to the father, that a section 68B injunctive Order be made restraining the mother from contacting the children or having the children in her care, unless in accordance with the Orders made by the Court;
·a Single Expert be appointed to report on the mother’s mental health; and
·the father also proposed a number of alternatives in the event that the Court did not consider that supervised time between the mother and children was necessary.
On 28 November 2021 the mother filed a Response as directed to the father’s Application in a Proceeding, seeking that:
·the Orders made on 28 July 2021 be discharged;
·the children spend time with the father, alternating Saturday and Sunday from 10:00 am until 5:00 pm, supervised by the maternal or paternal grandparents;
·the mother be granted exclusive occupancy;
·the father be restrained from attending the home, school, and childcare centre;
·the mother be granted sole parental responsibility;
·the father undertake a mental health assessment; and
·the children have supervised telephone time with the father each day for 20 minutes.
On 13 December 2021, the competing applications before the Court proceeded to an interim defended hearing and judgment was reserved on that occasion. Whilst judgment was still reserved, the mother again filed a further Application in a Proceeding on 17 January 2022 seeking that:
·the matter be listed on an urgent basis;
·the mother have sole parental responsibility;
·an injunction restraining the parties from communicating directly, except with regards to the affairs of the children and from the father attending upon the former matrimonial home, school or childcare;
·the children spend time with the father on alternate Saturday’s from 10:00 am until 6:00 pm and alternate Sunday’s from 8:00 am until 4:00 pm, supervised by the paternal grandparents, maternal grandparent, or other person as agreed;
·the children have supervised telephone time with the father each day for 20 minutes; and
·the father undertake a mental health assessment and/or psychological consultations.
This is one of the applications that is listed before me for determination today.
The father filed a Response to the mother’s Application in a Proceeding on 28 January 2022 seeking that the application be summarily dismissed pursuant to r 10.09(c) of the Federal Circuit and Family Court of Australia Rules 2021 (Cth) (“the Rules”) and that the mother pay the father’s costs on an indemnity basis, and in the alternative as agreed or assessed.
On 30 January 2022, the mother filed an Application Contravention.
On 4 February 2022 judgment was delivered, and the current interim Orders were made that:
·all prior parenting Orders be discharged;
·the father have sole parental responsibility;
·the children live with the father;
·commencing Sunday, 6 March 2022, the children spend time with the mother, one day each week, from 10:00 am until 5:00 pm, supervised by B Children’s Contact Service;
·the mother be restrained from contacting the children or causing a third person to do so, or attending upon the children’s homes, school, playgroup or day care; and
·Orders were made for the appointment of a Single Expert.
On 15 February 2022, being less than two weeks after the current interim parenting Orders were made and judgment delivered the mother filed a second Application in a Proceeding, listed before me today, seeking:
·an injunction preventing the parties from being at the same place at the same time;
·the matter be listed urgently;
·the Orders made 4 February 2022 be stayed, pending the appeal;
·the children live with the mother;
·the mother have sole parental responsibility;
·the father be restrained from attending, entering or remaining at any place the children may live, attend school, and/or take part in activities or any place the mother may live or attend upon;
·the children spend time with the father one day each week from 10:00 am until 5:00pm, supervised by the maternal grandparent;
·the mother be granted exclusive occupation of the former matrimonial home;
·the matter be transferred to Division 1; and
·the father undertake a mental health assessment and/or psychological consultations.
On 16 February 2022, the mother filed an appeal against the current interim parenting Orders.
On 25 February 2022 the mother’s Application for Contravention was dismissed and costs were ordered against her.
On 4 March 2022, the father filed a Response to the mother’s Application in a Proceeding seeking again, that such application be dismissed and the mother pay the father’s costs on an indemnity basis.
On 11 March 2022, Order 3 sought by the mother in her Application in a Proceeding filed 15 February 2022, seeking a stay of the current interim parenting Orders was dismissed.
The mother’s appeal against the current interim parenting Orders was dismissed by Tree J of the Appellant Division in Division 1 of the Federal Circuit and Family Court of Australia on 14 July 2022 and the mother was ordered to pay the costs of the father and the Independent Children’s Lawyer in specified sums.
On 15 July 2022, Orders were made with the consent of the Independent Children’s Lawyer and the father and, on a defended basis, as against the mother, for the appointment of Dr AB as the Single Expert.
On 3 August 2022, the husband filed an Amended Initiating Application joining property proceedings to these proceedings. The husband has filed an Application in a Proceeding seeking various orders including that the father have exclusive occupation of the former matrimonial home. Such interim application is listed for hearing before this Court tomorrow.
EVIDENCE
It is logical to determine the father’s application for summary dismissal of the two applications filed by the mother prior to proceeding to potentially hearing and determining them on a substantive basis.
In support of the Orders sought as to dismissal the father replies upon:
·the Response filed 28 January 2022;
·the father’s affidavit filed 28 January 2022;
·the Judgment of this Court of 4 February 2022;
·the Orders and Judgment of the Appellant Division of Division 1 of 14 July 2022;
·the father’s written submissions filed 11 February 2022; and
·I have also read the Response filed by the father on 4 March 2022 as it deals with the mother’s second application filed in February.
The mother relies upon:
·the Application in a Proceeding filed 17 January 2022;
·the Application in a Proceeding filed 15 February 2022;
·the mother’s affidavit filed on 17 January 2022; and
·the mother’s further affidavit filed 15 February 2022.
The Independent Children's Lawyer relies upon:
·the Applications in a Proceeding filed on 17 January and 15 February 2022;
·the two affidavits of the mother filed 17 January and 15 February 2022;
·the two Responses filed by the father on 28 January and 4 March 2022; and
·the affidavit of the father filed 28 January 2022.
I have also read the Outline of Case Document (Interim Hearing) filed by the Independent Children's Lawyer on 5 September 2022.
DETERMINATION
I pause here for a moment to deal with and restate my determination with respect to the adjournment application made by the mother, orally, on several occasions during the course of the interim proceedings today. I have declined to adjourn these proceedings today in circumstances where they have been on foot, now, for some eight or nine months. The mother has had ample opportunity to prepare herself for the interim applications - they are her interim applications. As rightly pointed out by Mr Hawach, on behalf of the father, the mother, in her own applications, seek that they be determined on an urgent basis. The mother has had the benefit of legal advice by no less than five legal practitioners since January of this year. The Court resources cannot be allocated further to this matter to allow an adjournment to be granted, the matter needs to be dealt with today, as the Court resources should not be allocated to a further interim hearing that would also result in costs being incurred by both the father and the Independent Children's Lawyer.
Another reason for the mother’s adjournment application was that there was material that she wished to put before the Court. The material that the mother wished to put before the Court is material that was in existence and the mother could have sought leave to bring before the Court when the matter was listed for an appeal and, in those circumstances, I did not read that material. The mother further submits that there is further material that has not been produced at the Court, that she wished to have put before the Court, I reiterate that the mother has had plenty of opportunity to put that material before the Court and I am not satisfied that the matter should be adjourned today on that basis.
Section 45A of the Family Law Act 1975 (Cth) states that the Court may make a decree for one party against the other if the Court is satisfied that the other party has no reasonable prospects of success. Subsection 3 clearly states that a matter does not have to be hopeless or bound to fail for the Court to make a determination that it has no reasonable prospects of success.
Subsection 4 of this same section provides that:
The court may dismiss all or part of proceedings at any stage if it is satisfied that the proceedings or part is frivolous, vexatious or an abuse of process.
Subsection 6 states that:
If the court makes a decree, or dismisses all or part of proceedings, under this section, the court may make such order as to costs as the court considers just.
Rule 10.09 of the Federal Circuit and Family Court of Australia (Family Law) Rules of 2021 (Cth) (“the Rules”), mirror the provisions as set out in section 45A of the Act. This Rule states that a party may apply for summary orders that an application is frivolous, vexatious or an abuse of process, or, if there is no reasonable likelihood of success.
The case law is clear that summary dismissal of an application is to be sparingly invoked. The purpose of the ability to dismiss an application in this manner is to save the other party from further costs and to relieve the Court of the burden of unmeritorious claims. Both the father and the Independent Children's Lawyer, quite properly, in their submissions, canvas that many of the orders sought by the mother, on a broad brush basis, are either submissions and not orders capable of being made by the Court, or are orders that have been previously sought and determined by this Court, or are orders that could have been requested by the Court on 13 December 2021, or do not have a reasonable prospect of success.
The mother submits during the course of interim hearing today that her concerns for the children are such that the application should not be summarily dismissed, that if I do summarily dismiss both her Applications in a Proceeding today, she will then need to bring another application as she has such significant concerns for the children.
Turning, first, to the application made by the mother to transfer these proceedings to Division 1 of the Federal Circuit and Family Court of Australia. This is a procedural application that can be made at any time. It does not need to be and form part of a written application before the Court. The Court can make this order on its own motion. I am satisfied it is premature, on this day, to determine whether the matter should be transferred to Division 1. An interim application seeking various injunctive orders and interim property relief has been filed by the father and is listed for interim hearing tomorrow. Transferring the matter today, will, of necessity, vacate that interim hearing. That is not in accordance with the overarching purpose of either Court, to deal with matters as set out in s 67 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) to facilitate the just resolution of disputes, according to law, as quickly, inexpensively and efficiently as possible.
The possible transfer of the matter to Division 1 will be dealt with subsequent to determination of the interim property proceedings, not before. At this stage of the proceedings, therefore, there is no reasonable prospect of success of an application to transfer the matter, at this time.
The mother seeks extensive orders in each of her applications. I will address each of them very briefly. Turning to the Application in a Proceeding filed 17 January 2022, and I reiterate that I have had significant assistance with respect to each of the orders sought by the Independent Children's Lawyer with the Case Outline filed by him on 5 September 2022. I will not read out each of the orders sought but simply refer to them numerically. Order 1 as sought is a procedural application, the matter is now being heard and, therefore, the order as sought is of no use.
Order 2, as proposed is not an order that is capable of being made by this Court.
Order 3 as sought has already been heard and determined previously.
Order 4 is an order that could have been sought by the mother previously. I note that injunctive orders have been made with respect to the parties conduct and I am satisfied that this is an issue that has been dealt with previously by this Court.
Orders 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, and 17 are all orders that have been sought by either of the parties during the course of prior interim applications before this Court that have been heard and determined, and I am not satisfied that they should be re-litigated. I am not satisfied that any of those orders have a reasonable prospect of success and are an abuse of process.
Turning then to order 16 as sought. As submitted by Mr Hawach for the father, a court expert has now been appointed in these proceedings with respect to the mental health of both of the parties, therefore, that order as sought has already been heard and determined.
Turning then, briefly, to the Application in a Proceeding filed by the mother on 15 February 2022. With respect to order 1, there is no evidence filed in support of that. It is an unclear and unenforceable order, and I am satisfied that it has no reasonable prospect of success.
Order 2 as sought, is a procedural order and events have overtaken it as I am hearing and determining the application today.
Order 3 as sought is not relevant, as the stay has now been dealt with as has the appeal.
Orders 4, 5, 6, 7, 8 are issues that were before the Court previously and have been sought by either of the parties or have been issues that have been raised in prior interim hearings and have already been heard and determined by this Court.
Order 9 as sought is not necessary. There are Orders in place for the Orders to live with the father. A copy of those Orders have already been provided to the school.
Orders 10, 11, 12 as sought are Orders that have already been heard and determined by this Court.
Order 13 as sought, as Mr Hawach has submitted, is entirely inconsistent with the current parenting Orders and has no reasonable prospects of success and is an abuse of process.
Order 14 as sought with respect to exclusive occupation of the former matrimonial home, the father has such an application on foot, and it is listed for interim hearing tomorrow. So the issue as to who will have exclusive occupation of the former matrimonial home will be heard and determined tomorrow. It is an abuse of process for me to hear and determine that order as sought today.
Order 15 as sought has been dealt with by this Court with respect to prior injunctive orders that have been made.
I have dealt with Order 16 with respect to the proposal to transfer the matter to Division 1. That is an application that can be made subsequent to the hearing and determination of the father’s interim application for financial relief listed for hearing tomorrow.
Again, Order 14 mirrors an order that is sought by the mother in the Application in a Proceeding filed 17 January 2022, so I do not need to address that order as sought again.
In those circumstances, having gone through each of the orders sought by the mother in both her Applications in a Proceeding before me today, I am satisfied that none of the orders sought by the mother, apart from the possible transfer which is premature to deal with at the moment, have any reasonable prospects of success.
Most of the orders sought by the mother are indeed an abuse of process as the mother simply seeks to re-litigate issues that have been dealt with by this Court previously and have been heard and determined both by me on an interim defended basis and have also been the subject of an unsuccessful appeal by the mother to the Appellant Division of this Court. In those circumstances, both the Applications in a Proceeding filed by the mother on 17 January 2022 and 15 February 2022 will be dismissed.
The parties are reminded that they have a mandatory obligation pursuant to r 1.04 of the Rules to conduct proceedings in a manner consistent with the overarching purpose of the just resolution of disputes according to law as quickly, inexpensively, and efficiently as possible. To achieve that purpose, the Court must ensure that its resources are allocated in a manner that is fair to all those seeking the assistance of the Court. Thus, Federal Circuit and Family Court of Australia, Central Practice Direction - Family Law Case Management, 1 September 2021, pars 5.21 and 5.22 mandate that a party must not file an Application in a Proceeding seeking interim orders without making a reasonable and genuine attempt to settle the issue to which the application relates and, other than in urgent circumstances of high risk, parties may each file a maximum of two Applications in a Proceeding without leave. Thus, for both parties, leave must be sought as part of any further interlocutory application.
COSTS
This is an application for costs by the Independent Children's Lawyer sought against the mother in circumstances where both her Applications in a Proceeding have been summarily dismissed today. I am satisfied in the circumstances that it is just that a cost Order be made in the favour of the Independent Children’s Lawyer as sought.
I certify that the preceding sixty-six (66) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of Judge Murdoch delivered on 6 September 2022. Associate:
Dated: 17 October 2022
0
0
0