Matthews & Norris (No. 3)
[2018] FamCA 803
•5 October 2018
FAMILY COURT OF AUSTRALIA
| MATTHEWS & NORRIS (NO. 3) | [2018] FamCA 803 |
| FAMILY LAW – PRACTICE AND PROCEDURE – Vexatious proceedings – where the father sought an order pursuant to section 102QB(2) prohibiting the mother from instituting further proceedings under the Act on the basis the mother had frequently instituted proceedings in an Australian Court and has failed to prosecute some of those applications – where the mother has brought 15 applications against the father in respect of property and parenting – where parenting has been determined on a final basis – where the mother has made applications where she had little prospect of success – where the father has been awarded costs orders or had costs reserved – where the Court is satisfied that the mother has filed some vexatious applications – where the parties’ applications for adjustment of interest in property are yet to be determined – where a vexatious proceedings order has the capacity to disadvantage the mother who is self-representing and could delay final hearing to the disadvantage of both parties – application dismissed. |
| Family Law Act 1975 (Cth) s 102QB |
| Pencious & Searle [2017] FamCAFC 210 Potier & Attorney General (NSW) [2015] 89 NSWLR 284 Official Trustee in Bankruptcy & Gargan (No 2) [2009] FCA 398 |
| APPLICANT: | Mr Matthews |
| RESPONDENT: | Ms Norris |
| INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW |
| FILE NUMBER: | NCC | 2226 | of | 2015 |
| DATE DELIVERED: | 5 October 2018 |
| PLACE DELIVERED: | Newcastle |
| PLACE HEARD: | Newcastle |
| JUDGMENT OF: | Cleary J |
| HEARING DATE: | 2 August 2018 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Carty |
| SOLICITOR FOR THE APPLICANT: | Oliver Campbell Heslop Lawyers |
| COUNSEL FOR THE RESPONDENT: | Not Applicable |
| THE RESPONDENT: | Representing herself |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Not Applicable |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Scally |
Orders
The Application in a Case filed by the husband on 23 May 2018 is dismissed.
The Response to an Application in a Case filed by the wife on 25 July 2018 is dismissed.
No order as to costs.
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 Matthews & Norris (No. 3) 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).
| FAMILY COURT OF AUSTRALIA AT NEWCASTLE |
FILE NUMBER: NCC 2226 of 2015
| Mr Matthews |
Applicant
And
| Ms Norris |
Respondent
REASONS FOR JUDGMENT
This is an application by the husband, Mr Matthews, filed 23 May 2018, for a vexatious proceedings order to be made pursuant to section 102QB of the Family Law Act 1975 (Cth) (“the Act”), restraining the wife, Ms Norris.
This application, together with three others, came before me on 2 August 2018 for hearing. The application was opposed by the wife. The wife attended from New Zealand by telephone and represented herself. The husband was represented by counsel, who made detailed and careful submissions. During those submissions, counsel referred to the decision of the Full Court of the Family Court in Pencious & Searle [2017] FamCAFC 210.
The wife made some brief submissions in response. Without any criticism of the wife on this account, she had not read the decision in Pencious & Searle. The Court offered the wife time to read and consider that decision, and to make written submissions if she wished to do so. The wife took up that offer. Orders were made for submissions to be provided by close of business on the 17 August 2018. A further week was allowed for any response by the applicant husband.
The wife did provide written submissions, 24 pages, within time. Those submissions were marked as Exhibit 1. The husband did not file any material in response.
Evidence
The documents relied on in the application were as follows:
The Applicant father
a)The Application in a Case of the husband filed 23/05/2018;
b)Affidavit of the husband, Mr Matthews, filed 23/05/2018;
The Respondent mother
c)Response to an Application in a Case of the wife filed 25/07/2018;
d)Affidavit of the wife, Ms Norris, filed 25/07/2018;
e)Written submissions for the wife, filed 17/08/2018.
The Law
A vexatious proceedings order under section 102QB(1) of the Act may be made if the Court is satisfied that:
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.
Section 102QB(2) of the Act, the Court may make any or all of the following orders:
a)An order staying or dismissing or all 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; and
c)Any other order the court considers appropriate in relation to the person.
Section 102Q(1) of the Act defines “vexatious proceedings” to include:
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.
The decision in Pencious & Searle provides guidance on the general principles drawn from this and other jurisdictions on vexatious proceedings.
In summary, and relevant to this application, “frequently” in s 102QB(1)(a) of the Act, turns on its own context. There is no precise test. The New South Wales Supreme Court of Appeal in Potier & Attorney-General [2015] 89 NSWLR 284 concluded that “frequently” is a relatively low threshold test.
Guideline remarks are as follows from that decision:
(1)Both the quality of the vexatiousness of a proceeding and the nature of the proceeding itself inform the assessment of frequency.
(2)“Frequently,” is not to be assessed merely by an arithmetic calculation.
(3)The high or low proportion of proceedings instituted by a person charged with being vexatious is not determinative.
(4)The Court must bear in mind that a vexatious proceedings order will bear on all future proceedings, vexatious or not.
I note that the last consideration has bearing on the matter before me.
General principles drawn from the Official Trustee inBankruptcy & Gargan (No 2) [2009] FCA 398, were also referred to within the Pencious & Searle decision, and can be summarised as follows:
(1)The making of such an order is an extreme remedy, not to be applied lightly.
(2)The purpose of the order is to shield the public, including individuals and the Court, whose limited resources and needs must be managed and protected from baseless, repetitious suits.
(3)The power is not enlivened by the mere single occurrence of a vexatious claim.
(4)The commencement of relevant proceedings must lack reasonable grounds, and that the institution of such proceedings may fairly be said to be both habitual and persistent.
(5)The Court must ask whether the issues brought to the Court for determination are manifestly hopeless or devoid of merit [even then, if it was the first application of that kind, it would not enliven the discretion].
(6)The Court must ask ‘Is there a failure, often a refusal, to understand the principles of finality on litigation?’
I note that there is some indication of that in these proceedings, in that the respondent wife has repeatedly made applications in respect of parenting, which has been determined on a final basis.
(7)Is there a quality of repetition where proceedings commence as a matter of course, an inability not to engage? Has a litigant persisted where a rational person would abandon the field?
(8)Is a litigant genuinely but misguidedly persuaded as to the correctness of his or her own conduct?
I note that the implication of this consideration is that what might be objectively vexatious could also be subjectively righteous.
The submissions prepared in this case by the wife suggest a vehement and passionate belief in the righteousness of the wife’s cause.
(9)The character of the proceedings. Whether or not there are proceedings before other bodies, such as NCAT, may throw light on the vexatious nature of proceedings before the Court. If, for instance, the threshold test is met, a body of administrative litigation of a certain type might be sufficient to enliven the jurisdiction.
(10)Once the threshold is met, the considerations for the exercise of power are unconfined. However, the factors which will be relevant are informed by the protective purpose which the order serves.
I note that the impact of the litigant’s past proceedings is likely to be relevant, as well as the insight of the litigant into the litigation.
Analysis
By his Initiating Application filed on 19 August 2015 in the Federal Circuit Court, the husband commenced proceedings for orders in respect of both parenting arrangements and adjustment of interests in property.
By her Response, filed 9 November 2015, the wife proposed her own orders in both those areas.
Turning then to the facts of this application, the first question is, can the Court be satisfied that the wife has frequently instituted or conducted vexatious proceedings in Australian courts or tribunals?
To answer that question, an analysis is required of the evidence relied on by the husband in support of this application.
In his affidavit of 19 May 2018, the husband sets out the details of 15 applications by the wife, brought by way of Application in a Case, or on three of those occasions, by Response to an Application in a Case brought by himself. There are also references to other applications, both in the Full Court of this Court and in a Local Court.[1]
[1] Affidavit of father filed 23/05/2018, pars 6(a) to (o)
Those 15 proceedings can be analysed as follows:
An Application in a Case filed on 13 October 2015 was transferred from the Federal Circuit Court to the Family Court
There is no other information about this application.
An Application in a Case filed on 17 November 2015 seeking an injunction with respect to property
This application was not pressed by the wife when the matter was before the Court on 9 December 2015. That decision may have been vexatious. Equally, it may have been pragmatic and appropriate.
An Application in a Case filed on 28 June 2016
This application gave rise to consent orders. There was also an affidavit which contained allegations later expressly abandoned and disavowed in their entirety.
There is a vexatious flavour to such affidavits being filed, but the application itself gave rise to consent orders.
An Application in a Case filed on 18 October 2016 seeking a stay of all child support assessments payable by the wife to the husband
The application was accompanied by a 92-page affidavit which was clearly outside the rules. The matter came before the Court on 9 December 2016. It had not been served on the child support registrar and was stood over to 27 February 2017.
On that occasion, the application was dismissed when the wife did not attend Court. Costs in respect of that application have now been ordered and are sufficient to deal with the failure of the wife to prosecute her own application.
An Application in a Case filed on 3 November 2016 and heard on 9 December 2016.
This was an interim application by the wife to relocate with the child to live in New Zealand. The application was dismissed with no order as to costs.
Such an application for the ability to relocate with a child pending a final trial is rarely made, but is not unknown.
A Response to an Application in a Case filed on 19 December 2016 with respect to parenting
The wife sought the same orders in respect of relocation to New Zealand with the child on an interim basis as had been sought on the previous occasion.
It is clear that this matter wasted the time of the Court and could not have succeeded. The judge hearing the case noted that it was in the same terms as the application made by an earlier judge and had been wasteful of the Court’s time. It clearly had a vexatious character.
An Application for Contravention filed on 17 January 2017 with respect to property issues
It was listed on 6 February 2017. The wife did not appear on that occasion. The application was dismissed with no order as to costs.
One application where a party does not appear to prosecute their own case is not vexatious. If it happens repeatedly, the motivation requires scrutiny.
A Response to an Application in a Case filed on 1 February 2017 with respect to parenting
On that occasion, the wife sought to have the existing interim parenting orders discharged and replaced with orders that she have sole parental responsibly for the child and be permitted to relocate to New Zealand.
This was, in effect, a third application through a response to relocate with the child to New Zealand pending final orders. It was dismissed on that basis.
In my view, it clearly has a vexatious character.
An Application for Contempt filed on 7 February 2017 with respect to property issues
On 12 July 2017 when the matter came before the Court it was dismissed when the wife failed to appear in Court. The costs of the husband were reserved in respect of that application.
A Response to an Application in a Case filed 19 February 2017 heard on 20 February 2017
This was a fourth application to relocate with the child to New Zealand pending final trial. This application was, again, dismissed.
It clearly, in my view, has a vexatious character especially given the failure to accept that whatever her own view was, it was inevitably the case that without a completely new set of circumstances, the application for interim overseas relocation was likely to fail.
An Application in a Case filed 24 February 2017 seeking certain orders, namely, orders for a stay of orders dismissing applications to relocate
The Court explained to the wife that her application was misconceived. The application was dismissed in all respects. The costs of the husband were reserved.
Again, in the same category, this application has a vexatious character, a dogged refusal to accept that the application would not succeed.
An Application for Contravention filed on 27 February 2017
There were 59 pages with 57 separate alleged contraventions. The affidavit is described as having been 128 pages long. Again, very far outside the rules for interim and interlocutory applications. The application was adjourned several times and dismissed on 4 September 2017 when the wife failed to appear at Court. The costs of the husband were reserved.
I note that in combination with other occasions where the wife failed to attend to prosecute her own applications, there is an intensifying flavour of vexatiousness.
An Application in a Case filed on 28 April 2017 and a further application of 4 May 2017 seeking an extension of time to file trial affidavits
These applications were successful, and time was extended for the filing of documents. There was an order for costs of $500, and the husband asserts that that money has not been paid.
An Application for Contempt filed 16 August 2017 with respect to property
The matter came before the Court on 4 September 2017. There was no appearance by the wife. The application was dismissed, and the costs of the husband were reserved.
It falls into the same category of an increasing number of occasions where the wife did not attend to prosecute her own applications.
An Application for Contempt filed on 8 March 2018
This application was supported by an affidavit of 253 pages which is simply an outrageous size of document. The application was dealt with by the Court on 9 May 2018. The application was found by the Court to have been misconceived and was dismissed that day with no order for costs.
Appeals to the Full Court
There had been two Notices of Appeal filed by the wife with respect to orders made by the Court in December 2016. These appeals were discontinued by the wife on 17 March 2017. The husband had already incurred some costs.
On 27 July 2017, the wife filed a Notice of Appeal with respect to the final orders (parenting) made on 30 June 2017. The appeal books were not filed and served by the nominated time. The wife sought an order that the husband file and prepare the appeal books which he obviously declined to do.
The husband filed an application for security of costs which was successful.
The wife did not file and serve the appeal books and did not pay the directed funds for security of costs.
On 20 November 2017 the appeals registrar notified that the appeal was taken to be abandoned. That should have been the point where the wife acknowledged to herself at least that the final parenting orders were in place, and there was no more to be done about that aspect of the proceedings.
On 18 May 2018 the wife filed another Notice of Appeal with respect to the orders that had been made on 9 May 2018. In that appeal, the wife was seeking various orders including a transfer of the proceedings to New Zealand and other orders unlikely to have been implemented.
Application in State Court
On 24 January 2017, the wife filed an Application for an Apprehended Personal Violence Order against the solicitor for the husband on the basis that she (the solicitor) had sent to the unrepresented wife a disproportionate number of emails. The application was either withdrawn or dismissed at Singleton Local Court on 2 February 2017.
Conclusion
Has the discretion been enlivened?
I am satisfied that the wife has filed some vexatious applications as identified in these reasons.
In her Response to this application, the wife sought orders for a Domestic Violence Order for her protection against the husband, spousal maintenance and in orders 5 to 16, a comprehensive suite of parenting orders despite final parenting orders having been made and a prospective appeal against them having been abandoned. Such a response has the character of a refusal to accept that the litigation process has been undertaken and exhausted.
The husband has incurred costs and lost time from work. He has spent time reading and responding to applications with supporting affidavits where the application was subsequently abandoned.
I note that the bankruptcy issue raised by the husband regarding costs and the possibility of receiving them from the wife has now been ameliorated by the fact the wife has been discharged from bankruptcy.
Taking all those factors into account, I consider that the discretion to make an order has been enlivened.
Should the discretion be exercised in favour of an order (VPO) being made?
Despite the considerable force of the application, I conclude that the discretion, though enlivened, should not be exercised in favour of a vexatious proceedings order being made.
The principal reason is that the initial proceedings in respect of adjustment of interests in property are yet to be heard and determined.
Another judge of this Court who heard the vast majority of the applications referred to in these reasons elected to recuse himself from further hearing.
A registrar of this Court is waiting to hold a conference with the parties in order to prepare the final aspect of the proceedings for trial.
A vexatious proceedings order has the capacity to put the wife, especially if she continues to be self-representing, at a severe disadvantage and, further, to delay final hearing to the disadvantage of both parties.
The wife has shown signs of tenacious pursuit of her preferred parenting outcome despite the final parenting orders having been made. This is similar to the character of conduct identified by the Full Court in Pencious & Searle. For instance, the material in the submissions of the wife for this application under the following headings:
· Vexatious Proceedings (by husband as a perpetrator of domestic violence);
· Systems Abuse;
· Following, harassing and monitoring;
· Stalking;
· Controlling, jealous, obsessive behaviours;
all suggest that there is a risk that the wife may not cease making parenting applications.
As stated in her response to this application, the wife again applied for parenting orders on an interim basis, which could simply not succeed.
If the wife continues in that way after all aspects of the proceedings between the parties have been finalised, a fresh application of this type may have a different outcome.
On this occasion, for the reasons stated, I decline to make a vexatious proceedings order.
Orders are made accordingly.
I certify that the preceding seventy-one (71) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cleary delivered on 5 October 2018.
Associate:
Date: 5 October 2018
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