Mankiewicz and Anor & Swallow and Anor
[2016] FamCAFC 153
•16 August 2016
FAMILY COURT OF AUSTRALIA
| MANKIEWICZ AND ANOR & SWALLOW AND ANOR | [2016] FamCAFC 153 |
| FAMILY LAW – APPEAL – CHILDREN – Where the maternal great grandparents appeal against dismissal of their application to spend time with their great grandchildren and a vexatious proceedings order – Where the appellants previously found to lack standing to apply for parenting orders – Where the appellants subsequently instituted parenting proceedings on the same facts and seeking the same orders – Whether the appellants had standing to institute parenting proceedings – Where prior to determining the question of standing, the primary judge made orders under s 102QB(2) dismissing the proceedings and restraining the appellants from instituting further parenting proceedings – Whether the primary judge had jurisdiction to determine the appellants’ fresh application – Consideration of ss 65C(c) and 102QB of the Family Law Act 1975 (Cth) – Where the orders were made within the court’s jurisdiction and power – Where the grounds of appeal challenge the exercise of discretion of the primary judge – Where findings were open – No error demonstrated – Appeal dismissed. FAMILY LAW – COSTS – Where the appellants’ were wholly unsuccessful on appeal – Where the circumstances justify an order for indemnity costs – Appellants to pay the respondents’ indemnity costs fixed in the amount of $15,000. |
| Family Law Act 1975 (Cth): ss 4(1), 65C, 93A(2), 94, 102Q, 102QB, 102QE, 117, 118 |
| A (by her next friend) and GS & Ors (2004) FLC 93-199 Aldridge & Keaton (2009) FLC 93-421; (2010) 42 Fam LR 369 Australian Conservation Foundation Inc v Commonwealth (1980) 146 CLR 493 Bemert & Swallow [2009] FamCA 5 Bemert & Swallow (2010) FLC 93-441 CDJ v VAJ (1998) 197 CLR 172 Cheney v Spooner (1929) 41 CLR 532, 536-537 Colgate-Palmolive Co and Anor v Cussons Pty Ltd (1993) 46 FCR 225 DMW and Anor v CGW (1982) 151 CLR 491 Finlayson v Finlayson and Gilliam (2002) FLC 93-121 Gedeon v Commissioner of NSW Crime Commission (2008) 236 CLR 120 Kuczborski v Queensland (2014) 254 CLR 51 Limousin v Limousin (Costs) (2007) 38 Fam LR 478 Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 Minister for Immigration and Multicultural and Indigenous Affairs v B (2004) 219 CLR 365 Munday v Bowman (1997) FLC 92-784 Panayotides v Panayotides (1997) FLC 92-733 Penfold v Penfold (1980) 144 CLR 311 Prantage & Prantage (2013) FLC 93-544 R v Ross-Jones; Ex parte Green (1984) 156 CLR 185 Ridley v Whipp (1916) 22 CLR 381 |
| FIRST APPELLANT: | Mr Mankiewicz |
| SECOND APPELLANT: | Mrs Mankiewicz |
| FIRST RESPONDENT: | Mr Swallow |
| SECOND RESPONDENT: | Ms Swallow |
| FILE NUMBER: | SYC | 6256 | of | 2013 |
| APPEAL NUMBER: | EA | 112 | of | 2014 |
| DATE DELIVERED: | 16 August 2016 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Ryan, Murphy & Austin JJ |
| HEARING DATE: | 24 May 2016 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 25 July 2014 |
| LOWER COURT MNC: | [2014] FamCA 579 |
REPRESENTATION
| FOR THE FIRST APPELLANT: | The first appellant appeared through the second appellant |
| FOR THE SECOND APPELLANT: | Mrs Mankiewicz in person |
| SOLICITOR FOR THE FIRST RESPONDENT: | Barkus Doolan |
| SOLICITOR FOR THE SECOND RESPONDENT: | Barkus Doolan |
Orders
All outstanding Applications in an Appeal be dismissed.
The appeal be dismissed.
The appellants pay the respondents’ indemnity costs in the amount of $15,000 within three (3) months of the date of these orders.
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 Mankiewicz and Anor & Swallow and Anor 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 Number: EA 112 of 2014
File Number: SYC 6256 of 2013
| Mr Mankiewicz and Mrs Mankiewicz |
First and Second Appellants
And
| Mr Swallow and Ms Swallow |
First and Second Respondents
REASONS FOR JUDGMENT
Ryan and Austin JJ
By Notice of Appeal filed on 21 August 2014, Mr and Mrs Mankiewicz (“the appellants”) appeal against orders made by Watts J on 25 July 2014.
By those orders the primary judge dismissed the appellants’ application to spend time with their four great grandchildren who are the children of their granddaughter and her husband (Order 1) and made a vexatious proceedings order against the appellants (Order 2). The vexatious proceedings order was made pursuant to s 102QB(2)(b) of the Family Law Act 1975 (Cth) (“the Act”) and of the Court’s own motion (albeit at the suggestion of the respondents); on the basis that the appellants acted in concert with a person (their son) who has frequently instituted vexatious proceedings in Australian courts. The effect of the vexatious proceedings order is that the appellants can only institute proceedings for a parenting order in relation to these children with the leave of the Court.
Although the primary judge did not identify the provision pursuant to which the proceedings were dismissed, it is tolerably clear the order was made reliant upon s 102QB(2)(a) of the Act.
For reasons we will shortly explain, even without the constraints imposed by the vexatious proceedings order, the appellants have no more than a right to commence proceedings for in effect permission to apply for a parenting order in relation to these children. It follows that in practical terms the vexatious proceedings order does little more than ensure that any future application for a parenting order in relation to these children must not be served on the respondents other than with the Court’s leave in accordance with s 102QE(4) of the Act. Nonetheless, we accept that they are affected by the existence of a vexatious proceedings order and they have standing to appeal against it (Panayotides v Panayotides (1997) FLC 92-733).
Relevant background
This was the second application filed by the appellants to spend time with their great grandchildren. The first application was filed in 2008 and, by Order 5 dated 15 January 2009, that application was summarily dismissed by Watts J.
The children’s parents, Mr and Ms Swallow (“the respondents”) who are the respondents in this appeal, were similarly the respondents to that first application. In those proceedings they challenged the appellants’ standing to bring an application for parenting orders. His Honour agreed the appellants lacked standing (Bemert & Swallow [2009] FamCA 5 at [219]-[220]). Although the appellants sought to appeal his Honour’s orders, their appeal was deemed abandoned and an application for it to be reinstated was dismissed (Bemert & Swallow (2010) FLC 93-441).
It would seem that in relation to this application, everybody overlooked his Honour’s determination that the appellants lacked standing to bring the earlier proceedings or to consider their standing to bring the second application.
Standing to bring an application for a parenting order is governed by s 65C of the Act. Section 65C provides:
A parenting order in relation to a child may be applied for by:
(a) either or both of the child’s parents; or
(b) the child; or
(ba) a grandparent of the child; or
(c) any other person concerned with the care, welfare or development of the child.
Section 65C as it operated when his Honour determined the appellants’ lacked standing is identical to the provision as now formulated and as set out above.
The effect of s 65C is that the only people who have an unconditional right to apply for parenting orders are those identified in ss 65C(a), (b) and (ba). Applicants who only fall within s 65C(c) have the right to do no more than bring an application to attempt to establish facts which would permit them to apply for a parenting order and have no right to seek substantive relief until they do so. The point being that they can only apply for a parenting order where a court determines they are such a person and thereby grants permission. Whether or not permission should be given is a question of fact and to be determined on the basis that an applicant can demonstrate he or she is concerned with the care, welfare or development of the child. It will be a matter for the judge to decide in the individual case whether this issue is addressed as a discrete issue early in the case or at some other stage.
The Full Court considered this issue in Aldridge v Keaton (2010) 42 Fam LR 369 and described the process thus:
28.Senior counsel for the applicant agreed in circumstances such as the instant case, where a person is not a parent or grandparent of a child, there is a threshold question to be determined as to whether or not an applicant is a “person concerned with the care, welfare or development of a child”. However, he submitted once that threshold is crossed, the only test in respect of any applicant is whether or not a parenting order will be in the best interests of a child. For reasons we will now explain, we agree with that submission.
We agree.
Were the orders made in excess of jurisdiction or power?
On the hearing of the appeal we raised the issue about whether the appellants had standing to bring the application made to his Honour and, if they did not, whether this affected the validity of his Honour’s orders. The parties were unable to provide any assistance in the resolution of that issue, which given that the issue was unforeseen is not surprising. Nonetheless, for the reasons which follow, we consider his Honour had power to make the orders under consideration.
As already noted, the appellants were found to lack standing to apply for parenting orders under Part VII of the Act in 2009. When they commenced fresh proceedings seeking parenting orders in 2013 it was necessary for them to prove they then had standing under s 65C(c) of the Act. They were at liberty to do so because the former findings of fact made in 2009 about their lack of standing did not create an issue estoppel. An applicant’s standing under s 65C(c) of the Act may either be acquired or lost and its existence depends upon the facts found at the hearing of any application made under Part VII about the degree of the applicant’s “concern” with the subject child’s “care, welfare and development”.
In this instance, because it was possible the appellants had acquired standing since 2009 so as to permit prosecution of their fresh application under Part VII of the Act, the primary judge had both the authority and duty to decide whether their application lay within the limits of the Court’s jurisdiction. The grant of jurisdiction carries with it the ability to determine the existence or otherwise of facts upon which the jurisdiction depends, so there is jurisdiction to determine whether jurisdiction exists (Minister for Immigration and Multicultural and Indigenous Affairs v B (2004) 219 CLR 365 at 393; R v Ross-Jones; Ex parte Green (1984) 156 CLR 185 at 193, 213, 215-216, 222-223; DMW and Anor v CGW (1982) 151 CLR 491 at 507).
It therefore follows that the primary judge had jurisdiction in respect of the appellants’ application, but no power to exercise under Part VII of the Act unless they proved their standing, since jurisdiction and power are distinct concepts (Minister for Immigration and Multicultural and Indigenous Affairs v B at 377). Because jurisdiction and standing both mark out the boundaries of judicial power (Kuczborski v Queensland (2014) 254 CLR 51 at 60, 108-109), it was necessary for the primary judge to entertain the appellants’ application to determine whether or not they had acquired standing.
However, before deciding whether the appellants had acquired such standing, the primary judge determined to make two orders under s 102QB of the Act: one under s 102QB(2)(a) to dismiss their pending application and the other under s 102QB(2)(b) to restrain them from bringing any further parenting applications. As his Honour recorded (at [11]), he was urged to do so by the respondents. His Honour incidentally found (at [31], [32], [35]) there was no evidence to suggest any change in circumstances about the appellants’ lack of standing since dismissal of the former proceedings in 2009, but that finding was made after having already found that s 102QB was enlivened (at [24]).
The entitlement to invoke s 102QB(2) of the Act only arises “if a court exercising jurisdiction in proceedings under [the Act]” is satisfied of certain criteria (s 102QB(1)).
For that purpose, proceedings is relevantly defined as (ss 4(1) and 102Q(1)):
…a proceeding in a court…and includes…an incidental proceeding in the course of or in connexion with a proceeding.
The application brought by the appellants under Part VII of the Act, which the primary judge entertained, constituted proceedings under the Act within the specific meaning of that term. The fact his Honour could have, but did not, actually decide the proceedings by dismissal of the application due to the appellants’ lack of standing under s 65C(c) of the Act did not strip the proceedings of that characterisation. The primary judge instead decided, upon satisfaction of stipulated criteria, to dispose of the proceedings by exercising power under s 102QB(2) of the Act whilst jurisdiction was being exercised in those proceedings.
Therefore, the primary judge’s exercise of power under s 102QB to dismiss the extant proceedings and to restrain the appellants from bringing further proceedings was a valid exercise of power while exercising jurisdiction in proceedings brought under the Act.
The grounds of appeal
It needs to be observed at the outset that for the appellants to attempt to prosecute an application on the same facts which had previously resulted in a determination they lacked standing is patently an abuse of the Court’s process and vexatious. We have no doubt the application could have been dismissed under s 118 of the Act. It follows that his Honour’s order by which the application was dismissed was well justified and is unimpeachable. We mention this because it provides important context to the appeal and demonstrates that even if the appeal were to succeed the appellants’ position qua the prospect of time with their great grandchildren is not advanced.
It follows that because we are satisfied the primary judge had no option other than to dismiss the appellants’ application there is no utility in our giving further attention to those grounds addressed to the order for dismissal (Order 1). Nor can the appellants be permitted to agitate their complaints about his Honour’s orders made in 2009.
In a similar vein, grounds 6, 7 and 15 can be readily dismissed. By ground 6, it is said the primary judge erred by failing to take into account that the second respondent, the children’s mother, “…was not of sound mind to refuse access of her children to the maternal great grandparents”. It would be unnecessarily distressing to the second respondent and, were they to become aware of it, the children, for us to repeat the submissions made by the appellants in support of this ground. It is sufficient that we observe the factual premise which underpins the challenge was not made good and even if it had been, it was irrelevant.
As to ground 7, his Honour’s finding that the parents of the children oppose the application for the appellants to spend time with the children is impugned because his Honour failed to give reasons for it. His Honour’s finding reflects the orders sought by the respondents and he did not need to say anything more to support this uncontroversial fact.
By ground 15, the appellants challenge a finding the primary judge did not make.
The effect of this is that we need give no further attention to the contentions raised in grounds 3, 5, 6, 7, 10, 11, 12, 15, 17, 18, 19 and 20.
Of the remaining grounds of appeal, three broad areas of challenge to the vexatious proceedings order emerge. Namely, that the primary judge erred:
·in finding the appellants acted in concert with their son and thus s 102QB of the Act was engaged (grounds 1, 2, 4 and 14);
·in taking into account other proceedings (grounds 8, 9 and 13); and
·in denying the appellants procedural fairness (ground 16).
Before we consider the remaining grounds of appeal, it is useful to set out s 102QB of the Act, which is the provision which governs the circumstances under which a vexatious proceeding order may be made.
Section 102QB Making Vexatious Proceedings Orders
(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) a person, acting in concert with another person who is subject to a vexatious proceedings order or who is covered by paragraph (a), has instituted or conducted vexatious proceedings in an Australian court or tribunal.
(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.
…
(4) The court must not make a vexatious proceedings order in relation to a person without hearing the person or giving the person an opportunity of being heard.
…
(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.
There is no issue that the primary judge had the power to make a vexatious proceedings order of the Court’s own motion (s 102QB(3)) or that an order made under ss 102QB(2)(a) or (b) is a final order (s 102QB(5)).
Otherwise, the words “vexatious proceedings” are defined in s 102Q(1) of the Act and mean:
(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.
Acting in concert (grounds 1, 2, 4 and 14)
Before we discuss the various challenges raised by these grounds, we should provide some background to his Honour’s conclusion that the appellants, in instituting the proceedings, acted in concert with their son, Mr Bemert. The appellants’ son is the subject children’s maternal grandfather.
The appellants’ application for parenting orders was filed on 25 October 2013. Various affidavits were also filed and which obviously argue why their application is not an abuse of the Court’s process. The Court’s record reveals that the application came before the primary judge on 3 December 2013. On that occasion the application was listed on 28 January 2014.
The respondents did not file affidavits however, written submissions were given which made it clear they proposed that the proceedings be dismissed pursuant to s 102QB(2)(a), a vexatious proceedings order be made and/or summary dismissal for a variety of other reasons. It would seem the appellants were given permission to file written submissions in reply with those being served on 6 February 2014.
Turning then to the primary judge’s reasons, after his Honour set out the background to the 2009 and current proceedings, he posed and answered the question of whether “the maternal grandfather [is] a person who has frequently instituted or conducted vexatious proceedings in Australian courts or tribunals?” The primary judge answered this question in the following terms:
16.I have no difficulty in finding that the maternal grandfather is a person who has frequently instituted or conducted vexatious proceedings in Australian courts. Firstly, on the 25 February 2005 the Honourable Patten AJ in the Supreme Court of NSW, in response to an application by the Attorney-General of NSW, declared the maternal grandfather a vexatious litigant and made an order that he not, without leave of the court, institute proceedings in any court. The judgment of his Honour detailed numerous examples of vexatious litigation instituted by the maternal grandfather. Secondly, as already mentioned, an order was made pursuant to s118(1)(c) of the Act against the maternal grandfather on the 15 January 2009.
We observe that although the appellants argue the factual matters referred to in [16] of the trial reasons are irrelevant, they do not, and indeed having regard to the evidence before the Court, could not argue that his Honour’s findings do not accurately record the facts.
The primary judge then addressed the second aspect of s 102QB and posed the question “[a]re the maternal great grandparents acting in concert with the maternal grandfather?” His Honour took into account a number of factors which led to his satisfaction that the appellants were, as was contended for by the respondents, acting in concert with the maternal grandfather, namely:
·the appellants sought an order that the maternal grandfather represent them as a McKenzie Friend ([5] and [18]), albeit that application was subsequently withdrawn;
·the appellants’ affidavits were “prepared/settled” by the maternal grandfather ([19]);
·at [5] and [31] of his Honour’s judgment referred to earlier, he found the appellants and maternal grandfather lived in the same premises and nothing in the affidavits filed in the current proceedings indicated those circumstances had changed ([20]);
·in the 2009 reasons for judgment and in relation to those applications, at [14], the primary judge concluded that “[i]t would be unrealistic to ignore the connection between [the appellants’] application and the maternal grandfather’s application”;
·in the 2009 reasons for judgment, the primary judge found “[t]hat the maternal great grandparents’ application was significantly connected to the maternal grandfather’s application” ([20]);
·the relief sought by the appellants in the current proceedings is similar to the orders they and their son both sought in 2009 ([21]); and
·the appellants sought an exemption from the requirement to provide a certificate pursuant to s 60I of the Act on the basis the maternal grandfather previously obtained one in his action against the respondents ([22]).
The primary focus of ground 1 is that the primary judge erred in finding the maternal grandfather “prepared/settled” the appellants’ affidavits when he did no more than type the affidavits. According to the submission, the documents were prepared on the instructions of the appellants.
That the maternal grandfather’s role was limited to typing was not established before the primary judge. We note, for example, that both appellants filed affidavits which contain the following statement:
This affidavit was prepared/settled by Deponent’s elder son, [the maternal grandfather] who will act on behalf of the Deponent, as her [his] McKenzie Friend.
The appellants can have been in no doubt that this notation was potentially significant and that the respondents relied upon it as evidence they acted in concert with their son for the purposes of their application. The respondents specifically make this point at [24.2] of their written submissions. In reply, the appellants merely said “[The maternal grandfather] is not a party to these proceedings, and as such, all the respondents’ submissions relating to this person are of no relevance” (Appellants’ submissions in reply dated 6 February 2014 at [4]).
The primary judge was, thus, entitled to reach the conclusion made.
The same must be said in relation to his Honour’s decision that it was significant the appellants sought to appoint the maternal grandfather in the role of McKenzie Friend, even though that application was withdrawn.
We accept that the appellants, in their respective affidavits dated 9 September 2014 and 14 November 2014, gave evidence about their own desire to spend time with their great grandchildren. However, merely because an application is genuinely made does not exclude the possibility that the application is made in concert with another person. The two propositions are not mutually exclusive. It will be recalled that s 102QB itself contemplates that the proceedings may have been instituted by a person who has not previously instituted vexatious proceedings and that that the subject proceedings need not themselves be vexatious. The point being, that in these circumstances the provision is triggered by “acting in concert”. It follows that the challenges raised by ground 1 must fail.
By ground 2, the appellants repeat their submission made to the primary judge that their son’s circumstances were irrelevant and could not properly be taken into account. As we have already explained, because he was the person with whom it was alleged they “acted in concert” this proposition cannot be sustained and this ground also must fail.
In ground 4, the appellants argue the primary judge was wrong to make orders which preclude them from “ever making an application to have access to their great grandchildren”. His Honour did not do that. The relevant order is set out below:
2.Pursuant to section 102QB(2)(b) of the Family Law Act 1975 (Cth) (“the Act”), [the appellants], be prohibited from instituting parenting proceedings in respect to [the children] under the Act in any court having jurisdiction under the Act.
At notation 3, the primary judge explained the effect of Order 2 in the following terms:
It is noted that the statutory consequence of order 2 is that [the appellants] may only institute further proceedings for a parenting order in respect to the children with the leave of the court and the [appellants] must not serve a copy of any such application for leave and any supporting affidavit upon the respondents unless the court so orders.
As we have already explained, the appellants do not have a substantive right to pursue an application to spend time with the children and irrespective of the orders made on 25 July 2014, an application by them required evidence addressed to the threshold element of s 65C(c). The only relevant difference between the appellants’ need to establish standing pursuant to s 65C(c) and the vexatious proceedings order, is that the appellants must also comply with s 102QE(3) of the Act, namely:
(3) The applicant must file an affidavit with the application that:
(a) lists all the occasions on which the applicant has applied for leave under this section; and
(b) lists all other proceedings the applicant has instituted in any Australian court or tribunal, including proceedings instituted before the commencement of this section; and
(c) discloses all relevant facts about the application, whether supporting or adverse to the application, that are known to the applicant.
The imposition of these additional obligations does not impugn his Honour’s exercise of discretion in making the vexatious proceedings order and ground 4 will not succeed.
As to ground 14, it is argued that the primary judge could not take into account in the current proceedings his finding in the first proceedings that there was a nexus in the application made by the appellants and that advanced by the maternal grandfather. We do not agree. For, as his Honour explained, the orders sought by the appellants and the maternal grandfather in the earlier proceedings were almost identical. No challenge is made to his Honour’s finding in the current proceedings that the orders sought by the appellants were almost identical to those sought in the earlier proceedings. His Honour’s findings were thus open and clearly relevant. It follows this ground cannot succeed.
Took into account other proceedings (grounds 8, 9 and 13)
We will address ground 13 first. The essence of this ground is that the primary judge erred by taking into account that the maternal grandfather had been declared a vexatious litigant in a State court. The point being, that “the declaration of a vexatious litigant in a State jurisdiction has no relevance to the Federal jurisdiction in which the Family Court is in” (Appellants’ Summary of Argument, p 8 at [27]). This is a reference to ss 102QB(1)(a) and (b) and the words “Australian court or tribunal”. Those words are defined in s 102Q(1) and mean “a court or tribunal of the Commonwealth, a State or Territory”.
It follows, the primary judge was able, indeed given the nature of the application, was obliged to take into account the orders and declarations made by State courts.
Grounds 8 and 9 also challenge the relevance of other proceedings. Because they are illustrative of the tenor of the grounds of appeal, summary of argument and indeed, the appellants’ evidence, we will set these grounds in full.
Ground 8 asserts the primary judge:
…erred with referring to, and relying on the previous proceedings, as there was no contested litigation to which to assess the Respondent parties from the witness box, as [the primary judge] summarily dismissed the [maternal grandfather’s] and the Appellants’ [great grandparents’] applications on the basis that His Honour failed and/or refused to be mindful of the cogent documentation in support of the Second Respondent having a dysfunctional character and suffering from post-traumatic stress syndrome.
[The primary judge] erred in His Honour’s reliance on his own inane reasoning in his judgment of 2009. Those reasons did not consider the mental health of the Respondents i.e. that the Second Respondent was not of a sound mind and suffered from Post-Traumatic Stress Disorder and that the First Respondent was subject to fits of crying and not coping with his wife’s affliction on his own evidence.
(Appellants’ Summary of Argument, p 6) (Original emphasis)
Even if these propositions were established, we are at something of a loss to understand how these matters could advance the challenge to the vexatious proceedings order, or at all.
As to ground 9, the appellants assert:
[The primary judge] erred in His Honour’s reliance on the AVO that on 25.6.2013 was incompetently extended for a period of 10 years by [a magistrate], a judicial officer in the Local Court, without any grounds and in the absence of evidence to support the extension of the AVO.
(Appellants’ Summary of Argument, p 6) (Original emphasis)
His Honour was entitled to take these proceedings into account. These grounds must fail.
Procedural Fairness (ground 16)
The essence of ground 16 is that the primary judge is said to have erred by failing to ask the appellants to answer the following questions under oath:
· Did you and your husband, in this application act in concert with your elder son [the maternal grandfather]?
· Why didn’t your elder son join you as an Applicant in this application?
· What changes have occurred since the decision was made in 2009 pursuant to the rule in Rice v Asplund that are not apparent on the face of the evidence, and that is not apparent to the Court?
(Appellants’ Summary of Argument, p 9) (Original emphasis)
In a similar vein, at [30] of the appellants’ summary of argument, various questions are identified which it is submitted the primary judge should have required the maternal grandfather to answer on his oath. In this respect it is common ground that the maternal grandfather accompanied the appellants at the hearing and was present in court and thus available to answer the questions which the appellants say his Honour was obliged to ask.
We do not accept that his Honour was so obligated. As we said earlier, the appellants well understood that an allegation made against them was that these proceedings were brought in concert with their son. Although they denied that contention, if they considered the answers to these questions were relevant, that evidence could have been adduced by them. We do not accept that in circumstances where the case in favour of a vexatious proceedings order was presented in such comprehensive detail as is contained in the respondents’ written submissions to the primary judge, that by failing to question the appellants in the manner suggested, the primary judge proceeded unfairly.
Applications in an appeal
As no error has been established, it is necessary to consider the appellants’ applications to introduce further evidence in the appeal pursuant to s 93A(2) and for the appointment of an Independent Children’s Lawyer. The further evidence comprises affidavits by the appellants as to conversations with the maternal grandfather and the second appellant’s recently published autobiography.
As to the evidence of conversations with the maternal grandfather, this relates to conversations in which he disavows acting in concert with the appellants. It is hearsay evidence and prima facie inadmissible. If the appellants wished to introduce evidence of that type, it was incumbent upon them to adduce it before the primary judge and preferably from their son directly. More importantly, we are not persuaded that this evidence would have produced a different result at the trial (CDJ v VAJ (1998) 197 CLR 172).
As to the autobiography, its purpose is to demonstrate the wonderfully rich lives lived by the appellants and to demonstrate that the children could only benefit by knowing them first hand. As we perceive it, its admission could only be to establish that when in 2009 the primary judge determined the appellants should not be given permission to pursue an application for parenting orders, he erred. It would be inconsistent with the importance of finality for us to permit this evidence to be introduced. We cannot see how the admission of the autobiography could demonstrate error in the decision under appeal.
There was no argument addressed to why, in the appeal, the Court should appoint an Independent Children’s Lawyer. That application will also be dismissed.
Conclusion and costs
It follows that the appeal should be dismissed.
If the appeal failed, the respondents sought that the appellants pay their costs on an indemnity basis and failing that, calculated as party/party costs. Calculated on an indemnity basis, the respondents’ costs amount to $15,000 and on a party/party basis are $6,000.
An application for costs is governed by s 117 of the Act. Section 117(1) sets out the general rule that each party to proceedings shall bear his or her own costs. The general rule is subject to s 117(2) which permits the Court to make an order for costs where there are justifying circumstances (Penfold v Penfold (1980) 144 CLR 311).
We accept the proposition advanced by the respondents that the appellants’ lack of success in the appeal and the nature of the orders under appeal, are circumstances that justify an order for costs in the respondents’ favour.
It is thus necessary to consider those matters set out in s 117(2A)(a)-(g) insofar as they are relevant to determine what order, if any, should be made.
Sub-section (a) is concerned with the parties’ financial circumstances. The appellants are in receipt of Centrelink benefits and live in rented accommodation. The appellants argue an order for costs would occasion hardship to them and their difficult financial circumstances should protect them from an order for costs. The submission as to hardship is accepted. However, it needs to be understood that impecuniosity in and of itself does not provide immunity to an order for costs (Limousin v Limousin (Costs) (2007) 38 Fam LR 478). However, the respondents’ financial circumstances are not in evidence and thus the application of the sub-section weighs against an order for costs.
Sub-section (e) requires the Court to consider whether any party to the proceedings has been wholly unsuccessful. The appellants have been and, given that this is an appeal, the application of the sub-section heavily favours the respondents.
Sub-section (g) entitles the Court to take into account such other matters as the Court considers relevant. It is most relevant that this was an appeal against a vexatious proceedings order brought in circumstances where the appellants lacked standing to prosecute their application at first instance. These matters weigh heavily in favour of the respondents.
Thus, notwithstanding the matters that have weighed in favour of the appellants, we give greater weight to the appellants’ total lack of success and the nature of the orders under appeal. These findings support not only an order for costs but potentially an order against the appellants on an indemnity basis.
Indemnity costs are rarely awarded and it is generally accepted that the circumstances which warrant elevating an order for party/party costs to indemnity costs would be exceptional (Munday v Bowman (1997) FLC 92-784). The circumstances identified in Colgate-Palmolive Co and Anor v Cussons Pty Ltd (1993) 46 FCR 225, per Shepherd J, as to when the indemnity costs could be warranted, also apply to proceedings under the Act (Prantage & Prantage (2013) FLC 93-544).
In our view, the appellants pursued their appeal with total disregard to their lack of standing, the known facts and in circumstances where, as we have already explained, the proceedings which gave rise to the appeal were themselves vexatious. Vexatious proceedings orders are rarely made and we find it difficult to conceive of circumstances where an unsuccessful appeal against an order of that type would not justify an order for indemnity costs.
An order for indemnity costs in favour of the respondents is appropriate.
Murphy J
I have had the advantage of reading in draft form the reasons for judgment of Ryan and Austin JJ. My view as to the applicable legal principles differs from their Honours.
These reasons seek to explain my view that the appellants did not have standing to seek parenting orders before his Honour with the consequence that the orders made by his Honour were not validly made and should be set aside.
The Terms of Section 65C
I respectfully disagree with the conclusion reached by Ryan and Austin JJ (at [4] above) that “the appellants have no more than a right to commence proceedings for in effect permission to apply for a parenting order in relation to these children”.
That conclusion appears to be based upon the conclusions (at [10]) which draw a distinction between applicants who seek to invoke the jurisdiction of the court to make parenting orders. Their Honours conclude:
Applicants who only fall within s 65C(c) have the right to do no more than bring an application to attempt to establish facts which would permit them to apply for a parenting order and have no right to seek substantive relief until they do so.
The terms of s 65C are clear and unambiguous. Every applicant for parenting orders must “establish facts which would permit them to apply for a parenting order”. Conversely, no applicant for a parenting order has “the right to seek substantive relief” unless and until they “establish facts which would permit them to apply for a parenting order”.[1] The section provides a pre-condition to the invoking of the court’s undoubted jurisdiction to make parenting orders in respect of children, namely that those seeking to invoke that jurisdiction have a sufficient nexus with the children in order to found the court’s jurisdiction and render it within constitutional constraints.
[1] Of course, in almost every case, no issue will be joined as to whether an applicant is a “parent” (s 65C(a)) or a “grandparent” (s 65C (ba)) or a “child” (s 65C(c)) – although see Aldridge & Keaton (2009) FLC 93-421 for an example of where that is not so.
A different factual pre-condition is specified in each of s 65C’s sub-paragraphs. The circumstance that facts which satisfy s 65C(c) differ from facts which satisfy s 65C(a), (b) or (ba) does not result in any additional requirement attending s 65C(c). The plain terms of the section underpin the Full Court’s rejection of the contention that s 65C involves a “threshold test” in the case of a non-parent and the rejection of the notion that the section imports “a hierarchy of applicants some of whose applications should receive less or no weight than others”.[2]
[2] Aldridge & Keaton, (above), at [54].
The Appellants’ Standing at First Instance
On 15 January 2009, Watts J had, in proceedings between the same parties seeking the same relief in respect of the same children, determined that the appellants had no standing to institute parenting proceedings.[3] His Honour found that the appellants were not persons “concerned with the care, welfare or development”[4] of the subject children. The appellants appealed that order. Their appeal was deemed abandoned. They made an application to reinstate that appeal. That application was dismissed.[5]
[3] Bemert & Swallow [2009] FamCA 5, [219]-[220].
[4] Section 65C(c) of the Act.
[5] Bemert & Swallow (2010) FLC 93-441.
The instant parenting proceedings were entertained by his Honour, and orders pursuant to s 102QB made, without reference to the issue of the appellants’ standing. Neither the parties nor his Honour made reference to the issue nor, specifically, to his Honour’s 2009 order.
Of course, the nature of the s 65C(c) pre-condition is such that it was open to the appellants to seek to establish that they had standing by reference to facts materially different to those pertaining in 2009. The appellants did not do so, nor did his Honour raise the issue. However, this is not a case where inadvertence or oversight on the part of self-represented appellants (and the court) resulted in them not establishing a pre-condition to the exercise of jurisdiction which, if drawn to their attention, they otherwise might have established. The appellants’ entire case was premised on them not being concerned with the care, welfare and development of the children at the time of the application and, indeed, at any time since, at least, the making of the 2009 order.
Ryan and Austin JJ contend (at [15]) that “[t]he grant of jurisdiction carries with it the ability to determine the existence or otherwise of facts upon which the jurisdiction depends, so there is jurisdiction to determine whether jurisdiction exists”. So much is well settled. However, I am respectfully unable to agree with the conclusion that their Honours thereafter draw that:
…the trial judge had jurisdiction in respect of the appellant’s application, but no power to exercise under Part VII of the Act unless they proved their standing, since jurisdiction and power are distinct concepts … [I]t was necessary for the primary judge to entertain the appellant’s application to determine whether or not they had acquired standing.
(At [16], italics in original).
There is, of course, no doubt that his Honour had jurisdiction to hear and determine parenting proceedings relating to the children. However, the court’s jurisdiction is not delineated by subject matter alone. In Kuczborski v Queensland,[6] French CJ said that “[t]he question whether there is a matter grounding federal jurisdiction to entertain a claim for relief is linked to the question of standing to claim that relief … [b]oth concepts are concerned to ‘mark out the boundaries of judicial power’”.[7]
[6] (2014) 254 CLR 51.
[7] Kuczborski v Queensland (above), 60, citing Bateman’s Bay Local Aboriginal Land Council v Aboriginal Community Benefit Fund Pty Ltd (1998) 194 CLR 247, 262.
Were it otherwise, the constitutional validity of at least some provisions of the Act would be called into question; the required nexus between the matter and the matrimonial cause (or referred power) would not exist. Section 102QB of the Act “applies if a court [is] exercising jurisdiction in proceedings under this Act”. The section is not the subject of a separate conferral of jurisdiction. The power to make an order under that section derives from the court exercising jurisdiction in other proceedings under the Act.[8] In my opinion, a court cannot be said to be exercising “jurisdiction in proceedings under the Act” if jurisdiction in respect of those proceedings has not properly been invoked.
[8] “Proceedings” bearing the defined meaning in s 4 – see s 102Q(1) of the Act.
The court had jurisdiction to entertain an application to determine if it had jurisdiction, however the court could not assume jurisdiction to make either parenting orders or orders pursuant to s 102QB in order to determine if it had jurisdiction; the question of jurisdiction cannot be answered by assuming it. Recourse to the Act’s definition of “proceedings” does not, as the majority appear to suggest at [16] and [17], assist: a proceeding is “merely some method permitted by law for moving a Court or judicial officer to some authorized act, or some act of the Court or judicial officer”.[9] The institution or existence of proceedings do not determine jurisdiction; proceedings cannot exist to move the court for relief unless the court has jurisdiction. It is for that reason that consent to jurisdiction by the parties cannot bind the court; a court either has jurisdiction or it does not.
[9] Cheney v Spooner (1929) 41 CLR 532, 536-537, cited by Mark Leeming, Authority to Decide – The Law of Jurisdiction in Australia, (Federation Press, 2012), 34.
Each of the sub-paragraphs of s 65C is in my view “an essential preliminary or a condition precedent”[10] to the jurisdiction. That is:[11]
…“some fact or event a condition upon which the existence of which the jurisdiction of a tribunal or court shall depend”. The court or tribunal cannot give itself jurisdiction by erroneously deciding that the fact or event exists.
(Footnotes omitted)
[10] Ridley v Whipp (1916) 22 CLR 381, 385; Finlayson v Finlayson and Gilliam (2002) FLC 93-121, [82].
[11] Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611, [127], citing respectively, R v Federal Court of Australia; Ex parte Pilkington ACI (Operations) Pty Ltd (1978) 142 CLR 113, 125; R v Federal Court of Australia; Ex parte WA National Football League (1979) 143 CLR 190, 214. See generally, Leeming (above), at [3.5].
Neither party nor the court sought to invoke the court’s jurisdiction to determine if it had jurisdiction; no such issue was ever joined or raised and his Honour plainly proceeded upon the assumption that he did have jurisdiction. While his Honour refers to the earlier proceedings (at [29] – [31]), those comments relate to questions of best interests (which assume jurisdiction); they do not relate to any issue pertaining to jurisdiction.
Within the context of a statutory requirement for prima facie proof of paternity as a precondition to the issue of a summons in a paternity suit, Griffiths CJ held that, “the justices have primâ facie no jurisdiction to entertain a complaint the subject matter of which is a summons for a pre-materrity [sic] order unless the prescribed conditions are fulfilled”.[12] It has been held in this Court that a father of a child had no standing to bring an application for a return order pursuant to the Hague Convention (standing at that time being confined to the Central Authority) and that, as a consequence “the orders made on his application, both by the Judicial Registrar and Coleman J could not validly be made” with the consequence that that “[t]he appeal against those orders should be allowed and the orders set aside”.[13]
[12] Ridley and Whipp (1916) 22 CLR 381, 386.
[13] A (by her next friend) and GS & Ors (2004) FLC 93-199, 79,290, [87] per Finn, May and Carmody JJ. See also, in a different context, Australian Conservation Foundation Inc v Commonwealth (1980) 146 CLR 493, 512 per Aickin J, where it was held that the plaintiff’s lack of locus standii was “not a mere defect in pleading which can be cured by amendment, but a defect which is fatal to the plaintiff’s cause of action and its entitlement to the relief claimed”.
In my view, the requirement that the appellants be persons concerned with the care, welfare or development of the subject children confines the jurisdiction of the court. It is a jurisdictional fact which “if not satisfied then the decision purportedly made in exercise of the power or discretion will have been made without the necessary statutory authority required of the decision maker”.[14]
[14] Gedeon v Commissioner of NSW Crime Commission (2008) 236 CLR 120, [43].
In my opinion, the appellants had no right to bring the proceedings resulting in his Honour’s orders and, respectfully, the vexatious proceedings orders within the meaning of s 102Q(1) of the Act made by his Honour “could not validly be made”. Those orders should be set aside on that basis.
The Applications in the Appeal
Two applications by the appellants seek the adducing of further evidence in the appeal. Axiomatically, those applications cannot be sustained if, as I have concluded, the appellants had not properly invoked the court’s jurisdiction. Each should be dismissed on that basis.
Costs
Given that I would set aside his Honour’s order it might be said that, in one sense at least, the appeal has not been “wholly unsuccessful”.[15] However, no part of the appeal agitated by the appellants was successful and, with all respect, no part of it, as argued, enjoyed reasonable prospects of success.
[15] Section 117(2A)(e) of the Act.
Moreover, as has been pointed out, the appellants were the subject of an existing order by which they were held to not have standing to commence the proceedings which they did. They appealed that order and applied to reinstate the appeal when it was deemed abandoned. Notwithstanding those circumstances, the appellants instituted the proceedings before his Honour. The children and their parents live in an intact family and have always resisted orders of the type sought by the appellants. Notwithstanding my different view of the legal principles involved, I agree with Austin and Ryan JJ that his Honour’s factual finding that the appellants had acted in concert with their son was well open to his Honour on the evidence before him.
The facts and circumstances justify an order for costs.
Indemnity costs are sought by the respondents. It can be accepted as settled that an award of such costs is exceptional. That might be considered to be all the more so in proceedings under the Act where the usual position is that each party is to bear their own costs. The facts and circumstances just referred to can in my view be regarded as exceptional and are persuasive of an order for indemnity costs being appropriate in this case.
The respondents urge us to fix those indemnity costs in the sum of $15,000. In the context of this case any further litigation, including any necessity for a formal assessment, would in my view be unjust to the respondents. The derivation of the figure contended for was explained to the bench. I consider it reasonable in the circumstances.
Orders
No ground of appeal agitated by the appellants has merit. However, an error of law is in my view apparent and should result in his Honour’s orders being set aside.
There is nothing to suggest that, by reference to the circumstances existing at the time of the hearing of the appeal, this Court should not itself make the order which ought to have been made by his Honour.
I would order that the application for final parenting orders filed by the appellants on 25 October 2013 be dismissed.
It might be thought ironic that this proposed order is, in terms, effectively identical to paragraph 1 of the orders made by his Honour. However, it is in material substance quite different; the proposed order is not a “vexatious proceedings order”. Indeed, the proposed order proceeds on the assumption that a vexatious proceedings order could not be made.
In the result, I would order:
1. The orders made by Watts J on 25 July 2014 be set aside.
2. That in lieu thereof it be ordered that the application for parenting orders filed by the appellants on 25 October 2013 be dismissed.
3. The appellants pay the respondents’ costs of and incidental to the appeal on an indemnity basis fixed in the sum of $15,000.
I certify that the preceding one hundred and four (104) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Ryan, Murphy & Austin JJ) delivered on 16 August 2016.
Associate:
Date: 16 August 2016
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