Marino and Bello and Anor (No.2)

[2020] FCCA 2203

FEDERAL CIRCUIT COURT OF AUSTRALIA

MARINO & BELLO & ANOR (No.2) [2020] FCCA 2203

Catchwords:
FAMILY LAW – Parenting Orders – Application for Summary Dismissal – best interests of the children – threshold test pursuant to s 65C(c) of the Family Law Act 1975 (Cth) – abuse of Court process – frivolous and vexatious proceedings – the application for summary dismissal is upheld.

Legislation:

Family Law Act 1975 (Cth), ss.(2A), (4), (4A), (5), (6), 65C(c), 118, 102QB,

117

Federal Circuit Court Rules 2001 (Cth), rr.13.03C(1)(e), 13.10

Cases cited:

Attorney General (NSW) v Wentworth (1988) 14 NSWLR 481

Darwin and Darwin (2008) FamCA 588

KAM v MJR JIG (Intervener) (1999) FLC 92-847

Mankiewicz and Anor v Swallow and Anor [2016] FamCAFC 153

Marino v Bello and Anor [2020] FCCA 1727

Applicant: MR MARINO

First Respondent: MR BELLO

Second Respondent: MS BELLO

File Number: PAC 437 of 2020

Judgment of: Judge Humphreys

Hearing date: 10 August 2020

Date of Last Submission: 10 August 2020

Delivered at: Parramatta

Delivered on: 15 September 2020

REPRESENTATION

Applicant: No Appearance

Counsel for the Respondents: Ms Dart

Solicitors for the Respondents: Mr Rowlandson

ORDERS

1. The application for summary dismissal is upheld.

2. The applicant is to pay the first and second respondents’ costs in the amount of $12,200.00 each, with a total amount being $24,400.00.

IT IS NOTED that publication of this judgment under the pseudonym Marino & Bello & Anor (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

PAC 437 of 2020

MR MARINO

Applicant

And

MR BELLO

First Respondent

MS BELLO

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant, Mr Marino (“the applicant”), is the brother of Ms Bello (“the second respondent”). The first and second respondents’ (“the respondents’”) are the parents of three children, X, 7 years of age, Y, 4 years of age and Z, 3 years of age (“the children”).

2. The respondents and the applicant are estranged. Various allegations of domestic violence by the applicant have been made by the second respondent. It is contended that the applicant has only had one contact with X and has never seen Y and Z.

3. On 20 January 2020, the applicant filed an Initiating Application, seeking orders that he be allowed to spend reasonable time with each of the children and attend any and all important life events, including but not limited to birthdays, christenings, Christmas etc.

4. In a subsequent Application in a Case, the applicant sought to join C, aged 16 years (the maternal half sibling of the subject children and the first born of the second respondent) to the proceedings, to spend time with the children and either C be allowed to appear without the need for a Litigation Guardian, or that the applicant be appointed as a Litigation Guardian for C.

5. The matter was initially allocated to the docket of Judge Myers of this Court. Since that date, the matter has progressed with various Applications in a Case being filed by the applicant, along with a large amount of other affidavits, Notices to Admit Facts, Notices to Produce and several Subpoenas.

6. On 28 May 2020, Judge Myers made orders for the hearing of an application, made by the respondents’, for the summary dismissal of the matter, on 15 June 2020. On 29 May 2020, the applicant filed an Application in a Case that Judge Myers immediately disqualify or recuse himself from the matter, on the grounds of actual or apprehended bias. No less than four Affidavits in support of the application that Judge Myers recuse himself, were filed by the applicant.

7. On 15 June 2020, Judge Myers recused himself from the matter and transferred the matter to my docket. An order was also made that ‘the application for summary dismissal is listed on 7 August 2020 at 10.00am with priority’. The applicant sought to challenge those orders in a further Application in a Case.

8. Following a hearing on 26 June, 2020, this Court dismissed the Application in a Case brought by the applicant; see Marino & Bello & Anor [2020] FCCA 1727. The Court confirmed orders that the Summary Dismissal Application filed by the respondents’ be heard on 7 August 2020. Subsequently, the applicant attempted to file a Notice of Appeal against the dismissal of his Application in a Case. On 15 July 2020, the Family Court Eastern Region Appeals Registrar, rejected the Notice of Appeal filed by the applicant, on the basis that the orders made by this Court were not amenable to appeal, as they were procedural in nature. The applicant was advised that he had 14 days in which to file a review of the Registrar’s decision.

9. It appears that on the same day, the applicant submitted a further Notice of Appeal, in the same terms which related to the same orders which the Appeals Registrar had previously rejected. After a number of attempts, the applicant successfully lodged an Application in an Appeal, seeking an extension of time in which to file an Application to Review the Appeals Registrar’s initial decision. This Court understands that the application was listed before Justice Ainslie-Wallace on 24 August 2020 and has now been stood over to a date in September 2020.

10. In the interim, it was determined that this Court would proceed with the hearing of the respondents’ Application for Summary Dismissal. This was done on the basis that there was no substantive appeal before the Family Court and it was in the interest of justice, for the Summary Dismissal Application to be determined. If the matter was dismissed, it would bring an end to the proceedings.

11. The matter was subsequently relisted to 10 August 2020 for hearing and the applicant advised that the matter would be conducted remotely by Microsoft Teams, due to health restrictions. An invitation to attend the Microsoft Teams meeting was forwarded to the applicant, at his stated email address. On Friday 7 August 2020 at 10.46am, the applicant declined the invitation to attend the hearing via Microsoft Teams. A further invitation to attend the hearing was sent to the applicant at 11.17am on Monday 10 August 2020. No response was received.

12. When the hearing commenced, the respondents’ legal representatives appeared, however the applicant did not. The applicant’s mobile telephone number was rung in open Court, by my Associate, in an endeavour to contact the applicant. There was no answer and the call rang out, unanswered.

13. The Court is satisfied that the applicant was aware of the time and date of the hearing and that he was able to participate remotely. The Court is satisfied that the applicant consciously determined not to attend and participate in the hearing. The Court also notes that despite Court orders made on 26 June 2020, the applicant failed to file a Case Summary Outline, in respect of the Summary Dismissal Application.

14. In these circumstances, on the application of the respondents’, the Court determined, pursuant to r 13.03C(1)(e) of the Federal Circuit Court Rules 2001 (Cth) (“the Rules”), to proceed with the hearing in relation to the Application for Summary Dismissal.

The Application for Summary Dismissal

The Respondents’ Submissions

1. The respondents’ filed an Application for Summary Dismissal on 13 May 2020. In support of the application, the respondents’ rely upon the first and second respondents’ affidavits sworn on the same day.

2. Counsel for the respondents’ submitted that this was an unusual situation where the respondents’ are the parents of three young children, who are the subject of the application to the Court, by the applicant. The respondents’ are in an intact relationship and have made a decision, for reasons best known to them, not to have the applicant in their children’s lives. The applicant is a stranger to the children.

3. The respondents’ point out that the applicant has only met the older of the three children, X, twice about 2012 and 2013 and has never met the younger two. The applicant has never met the first respondent, Mr Bello and has not seen his sister, the second respondent, since 2018. Prior to that, the applicant had no contact with the second respondent between 2013 and 2018.

4. The respondents’ allege that they have been the target of a campaign of harassment by the applicant, commencing in November 2019, when he requested Police and Child Protection authorities undertake a welfare check of the children. This is recorded to have found ‘nothing out of the ordinary’. In around November and December 2019, the applicant allegedly sent text messages to the second respondent demanding that the respondents’ contact him within 24 hours. In late January it is alleged that the applicant sent the second respondent a text message that stated:

   You are insane and not fit to raise children. I’m going to spend the next decade ensuring justice is served up to both of you.

5. The applicant’s allegations against the respondents’ include, that they have mental health issues, consume illegal drugs and that the first respondent (who he has never met) has serious health issues.

6. On 28 January 2020, it is alleged that the applicant sent a text message to the second respondent through C’s phone, in the following terms:

   Well well if it isn’t the little treacherous lying rat…you were just a nobody wit no identity…Or does the bald gronk control u that lemon headed puppet wanabe scared junkie who must be a braindead robot to be wit someone like u… The 2 mental patients... You follow him self-mutilate ur entire body with tattoos like a bikie disgusting...

7. The respondents’ allege, that the applicant sent the following text message through the maternal grandmothers phone on the 23 March 2020:

   Why r u a malicious idiot. The Bello virus. Bello 19, why r u killing the elderly.

8. In representing himself, it is submitted on behalf of the respondents’, that the applicant disrupted a settled family and has abused the processes of the Court, by filing some 42 documents since the Initiating Application of 30 January 2020, until the time of the filing of Submissions on 10 June 2020, including:

   1.A Notice of Risk;

   2.20 Affidavits

   3.5 Applications in a Case

   4.4 Notices to Admit Facts

   5.4 Notices to Produce

   6.6 Subpoenas

9. Numerous other documents have been filed since that date. Many of the documents have little relevance to the proper considerations of the matter. Further, it is alleged that since 29 March 2020, the applicant has sent the respondents’ solicitors over 130 emails. The applicant has made complaints in respect of the first and second respondents’ to the NSW Police, Department of Fair Trading (“DFAT”) and the Australian Securities and Investments Commission (“ASIC”), which allege criminal activity on the part of the respondents’ in relation to a business they operate.

10. In early April 2020, it is alleged that the applicant contacted a counselling service using the second respondent’s email address, in which he asserted that the second respondent is addicted to cocaine and that she and her husband (the first respondent) need help.

11. On 21 April 2020, the applicant filed an Application in a Case seeking orders that the first and second respondents’ undergo various drug testing, a psychiatric evaluation and mental health assessments. The applicant has made serious allegations in respect of the respondents’ solicitors and sought to have them removed from the case. It was submitted by Counsel for the respondents’ that the conduct of the applicant, amounts to an attempt to control or spite the second respondent.

12. Given the application before the Court is that the applicant only spend time with the children, it is submitted by Counsel for the respondents’ that it is clearly not in contest that the best interests of the children are that they remain in the primary care of their parents, notwithstanding the allegations made by the applicant.

13. It was submitted by Counsel for the respondents’, that the threshold test in s 65C(c) Family Law Act 1975 (Cth) (“the Act”), for standing to apply for a parenting order could not be satisfied as the applicant has no pre-existing relationship with the children. There is no objective evidence that introducing the applicant to the children would be in their best interests. It is further submitted his introduction into the family would in fact be contrary to their interests. It is also to be noted that there is currently an Interim Apprehended Domestic Violence order in place, prohibiting the applicant from approaching or communicating with the respondent’s and the children.

14. The respondents’ assert that while the applicant portrays himself as an unrepresented litigant, with no familiarity in the law, he is far from that. The applicant was admitted as a solicitor of the Supreme Court of NSW from 2009 to 2015, when his name was removed from the Roll of Lawyers of the Court (“the Roll”) when he was found not to be a fit and proper person to remain on the Roll.

15. The respondents assert that the matter should properly be considered for summary dismissal, to prevent them from incurring additional time, cost and expense in relation to legal proceedings that have no prospects of success.

Consideration

1. In the absence of any evidence from the applicant to the contrary and his deliberate decision not to participate in the Summary Dismissal hearing, the Court accepts the evidence of the respondents’, as set out in their affidavits, as to the actions of the applicant endeavouring to forcibly insert himself into their lives and those of their children.

2. In this matter, the applicant and indeed C, need to first prove standing, pursuant to s 65C(c) of the Act and that they meet the threshold test set out in Mankiewicz and Anor v Swallow and Anor [2016] FamCAFC 153 at [10] (“Mankiecwz”) where the Court said:

   [10] 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.

3. If the Court is satisfied that the standing test has been met, the Court has been asked to consider whether the proceedings should be summarily dismissed pursuant to r 13.10 (a, (b) or (c) of the Rules on the basis of:

   a.that the claim has no reasonable prospect of successful of success,

   b.that the proceeding or claim for relief is frivolous or vexatious; or

   c.that the proceeding or claim for relief is an abuse of the process of the Court.

4. The Court notes at this point, that there are additional powers in relation to Family Law proceedings that are considered frivolous or vexatious, under s 102QB and s 118 of the Act.

5. The Court is satisfied that the applicant and the respondents are estranged and their current relationship, if any, is characterised by high levels of dispute. It is difficult to see how the best interests of the children, the subject of the proceedings, could be enhanced by exposing them to the high levels of dispute and antagonism that have punctuated these proceedings.

6. The actions of the applicant, in the way that he has conducted the proceedings, indicate to the Court that he is not concerned with the care, welfare or development of the children. Rather, the proceedings are being used as a means of causing harm, expense and difficulty to the second respondent, who for whatever reason, the applicant has issues with. No material has been put to the Court which would indicate that the insertion of the applicant into the lives of the children, in what is an intact relationship between their parents, will somehow benefit them. Rather, the applicant makes assertions simply of unfitness on the part of the respondents’ to raise their children.

7. The Court notes that in so far as the applicant seeks to involve C in the proceedings, based on his affidavit of 30 April 2020, it cannot be discerned that he holds any concerns with the care, welfare and development of the children. The respondents’ contend that the only reason for C stopping spending time with the first and second respondent and the children, was a consequence of the actions of the applicant. The Court accepts this contention.

8. There is no material before the Court which would indicate that there are any real concerns as to the care, welfare or development of the children in terms of the respondents’. In these circumstances, the Court is not satisfied the applicant meets the threshold test, as set out above in Mankiecwz given the circumstances of the case: (see also KAM v MJR (1999) FLC 92-987) being that the applicant has a genuine concern for the care, welfare and development of the children. The Court is satisfied that the proceedings are instead being used to spite the respondents’.

9. That being the case, it is sufficient for the application to be dismissed. However, the Court has also been asked to order that the applicant pay the respondents’ costs, in the sum of $24,200. This application is made on the basis that the proceedings are frivolous and vexatious and an abuse of process on the part of the applicant.

10. In Attorney General (NSW) v Wentworth (1988) 14 NSWLR 481, Roden J set out the test for determining whether proceedings are vexatious. This was subsequently applied in the Family Law arena by Mullane J in Darwin and Darwin (2008) FamCA 588. The test is as follows:

    a)proceedings are vexatious if they are instituted with the intention of annoying or embarrassing the person against whom they are bought;

    b)they are vexatious if they are brought for the collateral purposes, and not for the purpose of having the Court adjudicate on the issues to which they give rise;

    c)they are also properly to be regarded as vexatious if, irrespective of the motive of the litigant, they are so obviously untenable or manifestly groundless as to be utterly hopeless.

11. It was submitted by Counsel for the respondents’ that the proceedings brought by the applicant, meet the above tests as being frivolous and/or vexatious. The respondents’ rely upon conduct of the applicant in terms of the sheer number of Applications in a Case he has filed with the Court, the number of affidavits, along with Notices to Admit Facts, Notices to Produce and Subpoenas issued. It is contended that all of these had been designed to annoy, harass and cause cost to the respondents’ and are not for any genuine concerns as to the care, welfare and development of the children. It is contended that the proceedings, when looked at in their totality, amount to an abuse of process of the Court.

12. The power to order costs by the Court is set out in s 117 of the Act. Section 117(2) of the Act provides that the Court may, if it is of the opinion, that there are circumstances that justified in doing so, subject to ss (2A), (4) (4A), (5) and (6) of the Act and the applicable rules of Court, make such order as to costs and security of costs, as the Court considers just. Relevant to this matter, are the following matters which the Court is required to have regard to, under s 117(2A) of the Act:

    a.   the financial circumstances of each of the parties to the proceedings;

    b.   whether any party to the proceedings is in receipt of assistance by way of legal aid and, if so, the terms of the grant of that assistance to the party;

    c.    the conduct of the parties to the proceedings in relation to the proceedings including, without limiting the generality of the foregoing, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answer questions, admission of facts, production of documents and similar matters

    d.   whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court;

    e.    whether any party to the proceedings has been wholly unsuccessful in the proceedings;

    f.     whether either party to the proceedings has made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer; and

    g.   such other matters as the Court considers relevant.

1. In this case, the applicant has failed to meet the threshold test in s 65C(c) of the Act. The proceedings have been wholly unsuccessful. The Court is satisfied that they have not been brought about out of any concern for the welfare of the children, rather, they have been brought with the intention of annoying, embarrassing, causing distress and/or spite to the respondents, and the second respondent in particular.

2. The Court considers that the conduct of the applicant in terms of the sheer amount of process that is filed with the Court, together with the unsubstantiated allegations he has made in respect of both the respondents and their legal representatives, are such that his conduct has been an abuse of the process of the Court. The Court is not aware of the applicant’s financial situation, due to the fact that he has consciously chosen not to participate in the proceedings. Neither party is in receipt of legal assistance. The Court is unaware of any offer by either party to settle the proceedings and the terms of such offer.

3. In these circumstances, the Court is satisfied that it is appropriate for a costs order to be made against the applicant in the amount sought, given the amount of time that has been necessary to devote to proceedings because of the actions of the applicant.

Conclusion

1. Accordingly, a costs order will be made that the applicant is to pay each of the respondents’, the amount of $12,200.00, by way of legal costs.

I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of Judge Humphreys

Deputy Associate:

Date: 15 September 2020