Mankiewicz & Anor and Swallow & Anor

[2014] FamCA 579

FAMILY COURT OF AUSTRALIA

MANKIEWICZ AND ANOR & SWALLOW AND ANOR [2014] FamCA 579

FAMILY LAW – CHILDREN – Application by maternal great grandparents for parenting orders to spend time with great grandchildren – Respondent parents oppose that order being made – where the court of its own motion considered whether the application should be dismissed pursuant to the provisions of ss102QB(2)(a) of the Family Law Act 1975 (Cth) (“The Act”) – where the maternal grandfather previously found to be vexatious litigant – where it is found the applicants are acting in concert with the maternal grandfather who is a person who has frequently instituted and conducted vexatious proceedings in Australian courts and tribunals – where the maternal great grandparents’ application was instituted and pursued without any reasonable ground and its continuation would be an abuse of the process of the court – where the maternal great grandparents’ application for final orders was dismissed – where a further order is made pursuant to s102QB(2)(b) of the Act prohibiting the maternal great grandparents from instituting parenting proceedings in the future.

Family Law Act 1975 (Cth)

Bemert & Swallow [2009] FamCA 5

Rice v Asplund [1978] 6 Fam LR 570

1st APPLICANT: Mr Mankiewicz

2nd APPLICANT: Ms Mankiewicz

1st RESPONDENT: Mr Swallow

2nd RESPONDENT: Ms Swallow

FILE NUMBER: SYC 6256 of 2013

DATE DELIVERED: 25 July 2014

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Watts J

HEARING DATE: 28 January 2014
(last written submission received 6 February 2014)

REPRESENTATION

SOLICITOR FOR THE 1ST APPLICANT:  Litigant in Person

SOLICTOR FOR THE 2ND APPLICANT: No Appearance

SOLICITOR FOR THE 1ST RESPONDENT: Barkus Doolan

SOLICITOR FOR THE 2ND RESPONDENT: Barkus Doolan

Orders

1. The application by the maternal great grandparents for final orders as sought in the initiating application filed on 25 October 2013 be dismissed.

2. Pursuant to section 102QB(2)(b) of the Family Law Act 1975 (Cth) (“the Act”), the applicants, Mr Mankiewicz and Ms Mankiewicz, be prohibited from instituting parenting proceedings in respect to L born … 1997, E born … 2000, M born … 2004 and T born … 2006 (“the children”) under the Act in any court having jurisdiction under the Act.

3. It is noted that the statutory consequence of order 2 is that Mr Mankiewicz and Ms Mankiewicz may only institute further proceedings for a parenting order in respect to the children with the leave of the court and the applicants must not serve a copy of any such application for leave and any supporting affidavit upon the respondents unless the court so orders.

   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)

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 6256/2013

Mr Mankiewicz and Ms Mankiewicz

Applicant

And

Ms Swallow and Mr Swallow

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

1. The applicants are the maternal great grandparents of four children who are currently aged 16, 14, 10 and 7 years old. At the date they filed their application, the maternal great grandfather was 93 years of age and the great grandmother was 90 years of age.

2. The children live with their parents, who are the respondents, in an intact family.

3. The applicants live with their son who is the maternal grandfather.

4. The applicants apply for time with their four great grandchildren for one to two hours per week, on a Sunday between 4 pm and 6 pm. The parents of the children oppose that order being made.

5. The application as filed sought an interim order that the maternal grandfather represent his parents as a McKenzie Friend. When the matter came before the court the maternal great grandmother appeared on her own behalf. The maternal grandfather was in the court room. There was no appearance of the maternal great grandfather. The maternal great grandmother withdrew her application that her son represent her as a McKenzie Friend.

6. There have been previous proceedings between the parents, the maternal grandfather and the maternal great grandparents. Those proceedings involved, inter alia, the maternal great grandparents seeking almost identical orders to those which they again seek now, namely that the children spend time with them on a weekly basis for two hours on a Sunday at 3 pm.

7. Orders were made (“the 2009 orders”) and reasons for judgment were delivered (“the 2009 reasons”) in the previous proceedings on the 15 January 2009 (Bemert & Swallow [2009] FamCA 5) (“the 2009 proceedings”).

8. The 2009 orders were in the following terms:

   8.1.The application filed by [Mr Bemert] [the maternal grandfather] on 20 February 2008 (“the first application”) is summarily dismissed.

   8.2.In the event that Order 1 is set aside by the Full Court, and the matter remitted for re-hearing, [Mr Bemert] shall prior to such re-hearing being listed, pay by way of security for costs to the solicitors for [Mr Swallow] and [Ms Swallow] [the parents] the sum of $50,000.00, such sum to be invested in a controlled monies account, pending determination of the hearing of the first application.

   8.3.Pursuant to s 118(1)(c) of the Family Law Act 1975, [Mr Bemert] shall not, without leave of a court having jurisdiction under the Family Law Act 1975, institute any proceedings under the Family Law Act 1975.

   8.4.[Ms Swallow] and [Mr Swallow] may, if they wish, make an application, in the time provided for by the Family Law Rules 2004, for [Mr Bemert] to pay their costs.

   8.5.The initiating application filed 1 July 2008 by Mr and Ms Mankiewicz (“the second application”) [the maternal great grandparents] is summarily dismissed.

   8.6.In the event that Order 5 is set aside by the Full Court, and the matter remitted for re-hearing, [Mr Mankiewicz] and [Ms Mankiewicz] shall prior to such re-hearing being listed, pay by way of security for costs to the solicitors for [Mr Swallow] and [Ms Swallow] the sum of $25,000.00, such sum to be invested in a controlled monies account, pending determination of the hearing of the second application. 

   8.7.[Ms Swallow] and [Mr Swallow] may, if they wish, make an application, in the time provided for by the Family Law Rules 2004, for [Mr and Ms Mankiewicz] to pay their costs.

9. During the 2009 proceedings, and currently, the children’s parents vehemently opposed the children seeing their maternal grandfather and their maternal great grandparents. As was recorded in 2009, the maternal great grandfather is a veteran litigant whom the Supreme Court of NSW has found is vexatious. The mother says that she was sexually abused by her father as a child. The maternal grandfather denies this, saying his daughter has a mental illness. The maternal great grandmother at paragraphs 10 and 12 of her affidavit, filed on the 25th October 2013, says that on 25 June 2013 a magistrate extended the AVO against the maternal grandfather in favour of the respondents for a further period of ten years.

10. During the 2009 proceedings I considered whether there should be a full hearing or whether or not the proceedings should be dismissed on a summary basis. For reasons expressed in the reasons for judgment dated 15 January 2009 I summarily dismissed the application by the maternal grandfather and I summarily dismissed the applications by the maternal great grandparents.

11. When the current application first came before me the respondents suggested that in all the circumstances, the court would, on its own initiative, make a vexatious proceedings order dismissing the proceedings instituted by the maternal great grandparents, and prohibiting them from instituting any future parenting proceedings in relation to the children under the Family Law Act 1975 (Cth) (“the Act”) in any court having jurisdiction under that act.

12. Section 102QB of the Act 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)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.

    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.

    (3) The court may make a vexatious proceedings order on its own initiative or on the application of any of the following:

    (a) the Attorney‑General of the Commonwealth or of a State or Territory;

    (b)the appropriate court official;

    (c) a person against whom another person has instituted or conducted vexatious proceedings;

    (d)a person who has a sufficient interest in the matter.

1. Section 102Q(1) of the Act defines “vexatious proceedings” as including:

   (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.

2. As set out above, on the 15 January 2009 the maternal grandfather was the subject of an order pursuant to s118(1)(c) of the Act. In 2009 the court was satisfied that the proceedings brought by the maternal grandfather were vexatious.

3. The court needs to consider the following questions:

   15.1.Is the maternal grandfather a person who has frequently instituted or conducted vexatious proceedings in Australian courts or tribunals?

   15.2.Are the maternal great grandparents acting in concert with the maternal grandfather?

   15.3.What orders (if any) should be made?

Is the maternal grandfather a person who has frequently instituted or conducted vexatious proceedings in Australian courts or tribunals?

1. 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.

Are the maternal great grandparents acting in concert with the maternal grandfather?

1. The initiating application is by the maternal great grandparents as joint applicants. At the hearing the maternal great grandmother appeared on behalf of herself and the maternal great grandfather made no appearance.

2. The maternal great grandmother withdrew her application for her son to be given leave to represent her as a “McKenzie Friend”. The maternal great grandfather originally sought that order on the basis that he was “an aged pensioner” and the maternal great grandmother refers to herself as “a nonagenarian, with limited life expectancy”.

3. The documents indicate that the affidavits of the maternal great grandparents were prepared/settled by the maternal grandfather.

4. In my reasons dated 15January 2009 at [5] and [231] I found that the maternal grandfather was living at the same premises as the maternal great grandparents. Nothing in the affidavits of the maternal great grandparents would indicate that there has been a change in those circumstances. At [14] of the 2009 Reasons I observe “…Whilst the application for summary dismissal of the maternal great grandparents’ case is to be dealt with upon facts asserted by the maternal great grandparents and relevant non contested facts raised by the parents, it would be unrealistic to ignore the connection between their application and the maternal grandfather’s application”. At [232] of the 2009 Reasons I comment that: It is a reasonable inference that the timing of the applications by the maternal great grandparents has been occasioned by the application made by the maternal grandfather. In 2009 I found that the maternal great grandparents’ application was significantly connected to the maternal grandfather’s application.

5. The relief sought by the applications is relief similar in nature to that sought in the 2009 proceedings by the applicants and their son separately.

6. The applicants seek an exemption from the requirements for a certificate pursuant to s 60I of the Act on the basis of their son having previously obtained one in previous proceedings ([3] of the maternal great grandfather’s affidavit filed 25 October 2013).

7. Given all those circumstances which connect the maternal great grandparents to the maternal grandfather, I find that the applicants are persons acting in concert with the maternal grandfather, who is a person who has frequently instituted and conducted vexatious proceedings in Australian courts or tribunals.

8. Accordingly, s 102QB of the Act is enlivened.

What orders (if any) should be made?

1. The court may make, on its own initiative, an order staying or dismissing all or part of any proceeding in the court already instituted by a person acting in concert with another person who has frequently instituted or conducted vexatious proceedings in Australian courts or tribunals (ss 102QB(2)(a)). An order can also be made under ss 102QB(2)(b) prohibiting the maternal great grandparents from instituting future proceedings of a similar nature.

2. As indicated proceedings were previously instituted by the applicants for relief which was almost identical to the relief that they currently seek.

3. Those proceedings were summarily dismissed by me on the 15 January 2009 and orders were made as summarily dismissing the maternal great grandparents’ application.

4. I also note that I made a further order that in the event that the applicants successfully appealed the 2009 orders and the matter was remitted for rehearing, the applicants pay by way of security for costs to the solicitors for the respondents the sum of $25,000. While the applicants appealed the 2009 orders, that appeal was declared abandoned and the application to reinstate the appeal was dismissed by the Full Court.

5. The applicants now seek “an order that the Family Court Application progress in spite of $25,000 not having been paid in the 2009 proceedings”. That part of the maternal great grandparents’ application was misconceived. The order for security for costs only related to a rehearing after a successful appeal of the 2009 orders and did not relate to any fresh application. It is however, when exercising discretion, a relevant matter to take into account.

6. In order for the applicants to be successful in relation to a new application they would need to satisfy what is commonly referred to as the “rule in Rice v Asplund [1978] 6 Fam LR 570” in which Evatt CJ stated that when considering a new application about a similar matter to one which the court has previously determined the court “should not lightly entertain an application…to do so would be to invite endless litigation for change an ever present factor in human affairs…there must be evidence of a significant change in circumstances.”

7. It is not apparent on the face of the evidence filed by the applicants as to what it is they assert has changed since the original decision was made in 2009.

8. At the time of the original decision the children had spent no meaningful time with their maternal great grandparents for approximately ten years, and no time at all with three of the four children ([219] of the 2009 reasons). There is nothing in the material filed by the maternal grandparents, or their submissions, that would indicate how allowing the children to have time with their maternal grandparents would promote the interests of the children. The only change is that it is now 15 years and not 10 years since one out of the four children had contact with their maternal great grandparents.

9. In their written submissions in reply, the applicants refer to “the uniqueness of the applicants’ blood relationship with their great grandchildren and the universal acceptance that children have an inherent right to both their antecedence and their living heritage”. As similar submission was made unsuccessfully in 2009.

10. In 2009 the diagnosis of the maternal great grandfather’s health was bleak [226 of the reasons], and the maternal great grandfather referred to the fact that he was in the last stages of his life [227 of the reasons]. The maternal great grandmother also made similar statements. A finding was made in 2009 that the maternal great grandparents could not fully engage in the care of the four children without assistance [228 of the reasons]. The evidence of the maternal great grandparents does not indicate that their health has improved although the applicants in their submissions in reply assert that the maternal great grandmother cares by herself for her seven year old grandson. There is, however, no satisfactory evidence that would alter the previous findings made in relation to the health of the applicants. The applicants in their submissions in reply “seek varied access to their four great grandchildren” so that on occasions they see the children two at a time in an unspecified rotation, and on other occasions all four together. I place no weight on what seems to be a new application contained in submissions in reply even if it could be connected in some way with submissions made about the applicants’ health and their ability to care for the children.

11. At paragraph 234 of the 2009 reasons I found that it was not in the best interest of the children for the maternal great grandparents’ application to proceed and that their case was clearly untenable. I find nothing in their material filed in these proceedings which would indicate that there has been a significant change in circumstances from those circumstances as detailed in the 2009 reasons which formed the basis for the ultimate conclusions and orders made in 2009. The applicants had no reasonable likelihood of success in 2009 and that has not changed.

12. I accept the respondents’ submission that they would be substantially prejudiced by having to litigate again and that they would suffer both emotionally and financially. It would be reasonably anticipated that such litigation would be protracted (including appeal) and would be orchestrated by and in concert with the maternal grandfather. I accept the respondents’ submission that the children would suffer emotionally from being dragged into that litigation, with possible involvement such as having a lawyer appointed to represent them, and having to attend interviews with a family consultant.

13. It is not necessary for the purposes of s 102QB of the Act to establish that the current proceedings are vexatious proceedings, although that may be relevant when exercising the discretion as to whether or not to make an order. In this case I have no difficulty in finding that these proceedings are vexatious proceedings. They are proceedings which have been instituted and pursued in this court by the applicants without any reasonable ground and I accept the respondents’ submission that to continue them would be an abuse of the process of this court.

1. Accordingly an order will be made dismissing the applicants’ application filed on the 25 October 2013 and a vexatious proceedings order will be made prohibiting the applicants from instituting parenting proceedings under the Act in any court having jurisdiction under the Act.

2. I note that a statutory consequence of the vexatious proceedings order which I make is that the applicants may only institute further proceedings for a parenting order with leave of the court (ss102QD(1)(a); ss102QE(2) of the Act) and the applicants must not serve a copy of any application for leave and the supporting affidavit on the respondents unless the court so orders (s102QE(4) of the Act).

I certify that the preceding thirty nine (39) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Watts delivered on 25 July 2014.

Associate:

Date:  25 July 2014

SCHEDULE 1

The documents relied on are as follows:

1. Reasons for judgment in Bemert & Swallow [2009] FamCA 5.

2. Initiating Application filed 25 October 2013

3. Affidavit of Ms Mankiewicz filed 25 October 2013

4. Affidavit of Mr Mankiewicz filed 25 October 2013

5. Application in a case filed 22 November 2013

6. Affidavit of Ms Mankiewicz filed 22 November 2013

7. Affidavit of Mr Mankiewicz filed 22 November 2013

8. Submissions of the respondents (exhibit 1).

9. Submissions in reply of the applicants filed 6 February 2014

10.Email from the lawyers for the Respondents dated 6 February 2014 indicating the Respondents did not wish to make any further submissions in response to the applicant’s submissions in reply.