Meadows & Meadows (No 4)
[2020] FamCA 864
•14 October 2020
FAMILY COURT OF AUSTRALIA
| MEADOWS & MEADOWS (NO. 4) | [2020] FamCA 864 |
| FAMILY LAW – PRACTICE AND PROCEDURE – Institution of proceedings – where the father seeks vexatious proceedings orders pursuant to s 102Q prohibiting the mother from instituting proceedings without leave of the Court – whether proceedings commenced by the mother were vexatious within the meaning of the Act – where proceedings commenced by the mother since 28 April 2020 and after final orders were made in 2019 are an attempt to re-litigate issues already determined – whether vexatious proceedings were instituted frequently within the meaning of the Act – mother prohibited from instituting proceedings under the Act, other than in relation to any costs application, an appeal or leave to appeal, seeking a transcript of proceedings, or filing a response, without leave of the Court. |
| Access to Justice (Federal Jurisdiction) Amendment Act 2012 (Cth) Family Law Act 1975 (Cth) ss 45A(4), 102Q, 102QB, 102QE, 102QG Vexatious Proceedings Act 2008 (NSW) |
| Attorney General (NSW) v Wentworth (1988) 14 NSWLR 481. Attorney General in and for the State of New South Wales v Gargan [2010] NSWSC 1192 |
| APPLICANT: | Ms Meadows |
| RESPONDENT: | Mr Meadows |
| FILE NUMBER: | PAC | 3509 | of | 2013 |
| DATE DELIVERED: | 14 October 2020 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Henderson J |
| HEARING DATE: | 6 July 2020 and 9 October 2020 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | In person |
| COUNSEL FOR THE RESPONDENT: | In person |
Orders
The mother is prohibited from instituting proceedings under the Family Law Act1975 (Cth) (“ the Act”) against or in relation to the father Mr Meadows or the child B without first having been granted leave to commence that proceeding pursuant to section 102QD of the Act.
This vexatious proceeding order does not apply to:
(a)Any cost application of the mother arising from these Orders and filed within the time prescribed under the Family Law Act 1975 (Cth) and the Family Law Rules 2004;
(b)Any appeal from these Orders provided such appeal is filed within the time prescribed under the Family Law Rules 2004 or such other time as is permitted by order of the Full Court;
(c)An application made by the mother to the Family Court to provide the mother with a copy of the transcript of proceedings heard before Justice Henderson; and
(d)The filing of a response or affidavit in reply by the mother.
IT IS NOTED the particular consequences arising from a vexatious proceedings order are set out in s 102QD of the Act, which provides:-
(a)If a person is subject to a vexatious proceedings order prohibiting the person from instituting proceedings, or proceedings of a particular type, under this Act in a court having jurisdiction under this Act:
(i)that person must not institute proceedings, or proceedings of that type, in the court without the leave of the court under section 102QG; and
(ii)another person must not, acting in concert with the person, institute proceedings, or proceedings of that type, in the court without the leave of the court under section 102QG.
(b)If proceedings are instituted in contravention of subsection (1), the proceedings are stayed.
(c) Without limiting subsection (2), the court may make:
(i)an order declaring proceedings are proceedings to which subsection (2) applies; and
(ii)any other order in relation to the stayed proceedings it considers appropriate, including an order for costs.
(d)The court may make an order under subsection (3) on its own initiative or on the application of any of the following:
(i)the Attorney-General of the Commonwealth or of a State or Territory;
(ii)the appropriate court official;
(iii)a person against whom another person has instituted or conducted vexatious proceedings;
(iv)a person who has a sufficient interest in the matter.
(e)IT IS NOTED that if the mother or any other person acting in concert with her wishes to apply for leave to institute a proceeding or proceedings covered by this vexatious proceedings order, the mother or such other person will be obliged to comply with s 102QE of the Act which provides:-
Section 102QE(1) This section applies to a person (the applicant) who is:
(i)subject to a vexatious proceedings order prohibiting the person from instituting proceedings, or proceedings of a particular type, under this Act in a court having jurisdiction under this Act; or
(ii)acting in concert with another person who is subject to an order mentioned in paragraph (a).
Section 102QE(2) The applicant may apply to the court for leave to institute proceedings that are subject to the order.
Section 102QE(3) The applicant must file an affidavit with the application that:
(iii)lists all the occasions on which the applicant has applied for leave under this section; and
(iv)lists all other proceedings the applicant has instituted in any Australian court or tribunal, including proceedings instituted before the commencement of this section; and
(v)discloses all relevant facts about the application, whether supporting or adverse to the application, that are known to the applicant.
Section 102QE(4) The applicant must not serve a copy of the application or affidavit on a person unless an order is made under paragraph 102QG(1)(a). If the order is made, the applicant must serve the copy in accordance with the order.
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 Meadows & Meadows 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 SYDNEY |
FILE NUMBER: PAC 3509 of 2013
| Ms Meadows |
Applicant
And
| Mr Meadows |
Respondent
REASONS FOR JUDGMENT
Dealing with the vexatious litigation application filed by the father by way of Application in a Case on 12 June 2020 pursuant to section 102QB of the Act.
I heard this matter on 6 July 2020 and 9 October 2020, which hearings were conducted by way of oral submissions only. At the conclusion of the hearing on 9 October 2020 I gave the mother an opportunity to provide me with written submissions as she was unaware of a decision of Justice Benjamin in Cannon & Acres [2014] FamCA 104[1] (“Acres”) on section 102QB of the Family Law Act 1975 (Cth) (“the Act”) and had only referred me to Vlug & Poulos (1997) FLC 92-778[2] (“Vlug”), a decision which was determined when section 118 governed these applications.
[1]Cannon & Acres [2014] FamCA 104.
[2]Vlug & Poulos (1997) FLC 92-778.
By email dated 9 October 2020 the mother advised she did not want to make any further submission to the Court.
Since Justice Baumann delivered his final decision on 30 July 2019, the mother has filed a multitude of applications listed from paragraph 13 together with supporting affidavits, annexures, case outlines and case summaries.
His Honour’s final orders of 30 July and 19 September 2019 and confirmed by the Full Court on 26 May 2020 dealt with all aspects of the dispute between the parties being parental responsibility, with whom the child lives, with whom and how she spends time and payment to the wife of monies by way of property settlement.
Since that time the mother has moved the Court for further orders which have been dealt with as follows.
I delivered a contravention judgment on 28 April 2020 in relation to her request for makeup time, issue of a recovery order and a recovery order to lie in the registry, failures of the father in relation to providing the child for Skype or telephone time and provision of the child’s school reports and the like. I found the father not guilty of any counts brought by the mother and dismissed her contravention application in totality finding it was the mother and not the father who had failed to comply with orders of the court.
I have determined to confine this judgment to the applications filed by the mother after delivery of the contravention judgment for reason which later appear.
Since that time the mother has filed 13 applications, 44 affidavits and various case outlines and case summaries and these include various applications that I disqualify myself from further hearing the mother’s applications and to set aside orders previously made pursuant to the provisions of Rule 17.02 of the Family Law Rules 2004 which applications were heard on 17 June and dismissed in oral judgment delivered on 18 June 2020.
An application seeking to restrain the father from allowing the child to carry out communion, confirmation and reconciliation at a Church attached to the school she attends was heard and dismissed in an oral judgment delivered on 6 July 2020.
Judgment delivered in writing on 9 September 2020 in relation to all the then remaining applications as set out in paragraphs 11 and 12 of that judgment, including dismissing her application to resist the father’s application that the mother remove a caveat on the title of the home which was preventing the father from complying with his Honour’s order to pay the mother her entitlement to property.
A further disqualification application was heard and judgment delivered on 9 October 2020 and at which time I made a declaration pursuant to section 102NA of the Act as the father provided evidence of a final AVO against the mother made on 6 October 2020 for two years naming the father and his wife as protected persons.
List of documents filed by mother post 19 September 2019
Notice of Appeal filed 27 August 2019;
Application in a Case filed 30 September 2019 seeking a stay some of the Orders of Justice Baumann pending her appeal;
Affidavit of herself filed 30 September 2019;
Application in a Case filed 4 October 2019 seeking to vary the changeover location.
Affidavit of herself filed 4 October 2019;
Application in an Appeal filed 18 October 2019;
Affidavit of herself filed 19 October 2019;
Affidavit of herself filed 19 October 2019;
Affidavit of herself filed 21 October 2019;
Affidavit of herself filed 22 October 2019;
Affidavit of herself filed 23 October 2019;
Affidavit of herself filed 23 October 2019;
Application for Final Orders filed 13 November 2019 (this application was dismissed by Registrar Hayward by Orders made 19 December 2019);
Application in a Case filed 13 November 2019 (this application was dismissed by Registrar Hayward by Orders made 19 December 2019);
Affidavit of herself filed 13 November 2019;
Application in an Appeal filed 13 November 2019;
Affidavit of herself filed 13 November 2019;
Application in a Case filed 16 December 2019;
Affidavit of herself filed 16 December 2019;
Case summary document filed 17 December 2019;
Application in a Case filed 19 December 2019 seeking, inter alia, a Review of Registrar Hayward’s decision of 19 December 2019, Christmas School Holiday time with her child and an injunction restraining the father from enrolling the child for various religious programs at HHH Church;
Affidavit of herself filed 19 December 2019;
Affidavit of herself filed 23 December 2019;
Affidavit of herself filed 24 December 2019;
Affidavit of herself filed 24 December 2019;
Affidavit of Ms FF filed on behalf of herself on 24 December 2019;
Affidavit of Dr GG filed on behalf of herself on 24 December 2019;
Affidavit of herself filed 24 December 2019;
Application in a Case filed 24 December 2019 seeking inter alia, a Review of Registrar McGrath’s decision of 24 December 2019 together with various applications to vary the Orders of Justice Baumann;
Affidavit of herself filed 24 December 2019;
Affidavit of Dr LLL filed on behalf of herself on 24 December 2019;
Affidavit of herself filed 31 December 2019;
Application in a Case filed 31 December 2019 seeking, inter alia, a Review of Registrar Turner’s decision of 30 December 2019, various applications to vary the Orders of Justice Baumann and an order that the Court issue an apology to the mother for Registrar Hayward’s Orders of 19 December 2019;
Affidavit of herself filed 3 January 2020;
Affidavit of herself filed 3 January 2020;
Affidavit of herself filed 4 January 2020;
Affidavit of herself filed 4 January 2020;
Affidavit of herself filed 4 January 2020;
Application in an Appeal filed 14 January 2020;
Application in an Appeal filed 20 January 2020;
Application for Contravention filed 11 February 2020;
Affidavit of herself filed 11 February 2020;
Affidavit of herself filed 12 February 2020;
Application in a Case filed 12 February 2020 seeking, inter alia, a recovery order if the father does not comply with the Orders of Justice Baumann and make up time;
Affidavit of herself filed 12 February 2020;
Affidavit of Ms FF filed on behalf of herself on 12 February 2020;
Affidavit of herself filed 13 February 2020;
Application in a Case filed 13 February 2020 seeking, inter alia, a Review of Registrar Bastiani’s decision of 11 February 2020 and an enforcement of the parenting orders of Justice Baumann;
Affidavit of herself filed 19 February 2020;
Application in a Case filed 19 February 2020 seeking, inter alia, a Review of Registrar Hayward’s decision of 12 February 2020, enforcement and recovery orders;
Affidavit of herself filed 19 February 2020;
Affidavit of Ms FF filed on behalf of herself on 19 February 2020;
Affidavit of herself filed 20 February 2020;
Affidavit of herself filed 20 February 2020;
Affidavit of herself filed 20 February 2020;
Affidavit of herself filed 27 February 2020;
Affidavit of herself filed 28 February 2020;
Application in a Case filed 28 February 2020 seeking, inter alia, injunctions against the father enrolling the child into religious preparation classes with HHH Church;
Affidavit of her father filed on behalf of herself on 16 March 2020;
Affidavit of herself dated 18 March 2020;
Application in an Appeal filed 19 March 2020;
Case summary document filed 27 March 2020;
Case summary document filed 27 March 2020;
Affidavit of herself filed 3 April 2020;
Application in a Case filed 3 April 2020 seeking, inter alia, the mother be permitted to rely on previous, or parts of previous Affidavits, a recovery order, the changeover location be varied and costs orders against the father;
Affidavit of herself filed 14 April 2020;
Affidavit of herself filed 14 April 2020; and
Case summary document filed 24 April 2020.
In total, the mother filed 14 applications and 43 affidavits from 19 September 2019 to 28 April 2020.
List of applications and documents filed post the Contravention judgment delivered on 28 April 2020
Application in a Case filed 30 April 2020 seeking, inter alia, enforcement of the orders of Justice Baumann, that this application be heard by a judge other than Justice Henderson, that the child spend time with the mother on Mother’s Day, the changeover location be varied, a recovery order, the matter be transferred to Parramatta and disclosure from the father in relation to any other cases the child has been involved or mentioned in;
Affidavit of herself filed 30 April 2020;
Affidavit of herself filed 1 May 2020;
Application of herself filed 1 May 2020 seeking, inter alia, the application be heard ex parte, the application be heard by a judge other than Justice Henderson, the Orders of Justice Henderson dated 30 March 2020 be set aside, the matter be transferred to Parramatta;
Affidavit of herself filed 1 May 2020;
Application in a Case filed 1 May 2020 seeking, inter alia, the application be heard ex parte, the application be heard by a judge other than Justice Henderson, the Orders of Justice Henderson dated 30 March 2020 be set aside, the matter be transferred to Parramatta;
Case summary document filed 4 May 2020;
Case summary document filed 4 May 2020;
Case summary document filed 4 May 2020;
Case summary document filed 4 May 2020;
Case summary document filed 4 May 2020;
Affidavit of herself filed 6 May 2020;
Application in a Case filed 6 May 2020 seeking, inter alia, the application be heard ex parte, the application be heard by a judge other than Justice Henderson, the Orders of Justice Henderson dated 30 March 2020 be set aside, the matter be transferred to Parramatta;
Affidavit of herself filed 8 May 2020;
Application in a Case filed 8 May 2020, seeking, inter alia, the application be heard ex parte, the application be heard by the first available judge and the Orders of Justice Henderson dated 30 March 2020 be set aside;
Summary of Argument filed 8 May 2020;
Affidavit of Ms FF filed on behalf of herself on 8 May 2020;
Affidavit of Dr GG filed on behalf of herself on 8 May 2020;
Affidavit of herself filed 8 May 2020;
Amended Application in a Case filed 10 May 2020 seeking, inter alia, the same orders as the Application in a Case filed 8 May 2020, however, make up time instead of Mother’s Day time;
Summary of Argument filed 11 May 2020;
Affidavit of herself filed 17 May 2020;
Application in a Case filed 17 May 2020 seeking, inter alia, an ex parte order in Chambers on the papers that the mother be permitted to take the child to obtain a psychological and optical assessment and a Review of Senior Registrar Campbell’s procedural chambers orders preparing the matter for electronic hearing;
Affidavit of Dr LLL filed on behalf of herself on 25 May 2020;
Affidavit of Dr GG filed on behalf of herself on 25 May 2020;
Affidavit of Ms FF filed on behalf of herself on 25 May 2020;
Affidavit of her father filed on behalf of herself on 25 May 2020;
Affidavit of herself filed 27 May 2020;
Affidavit of herself filed 27 May 2020;
Affidavit of herself filed 27 May 2020;
Summary of Argument filed 27 May 2020;
Case Summary/Outline filed 27 May 2020;
Affidavit of herself filed 27 May 2020;
Affidavit of Dr GG filed on behalf of herself on 27 May 2020;
Summary of Argument filed 27 May 2020;
Summary of Argument filed 27 May 2020;
Summary of Argument filed 27 May 2020;
Summary of Argument filed 29 May 2020;
Amended Application in a Case filed 15 June 2020 seeking, inter alia, that certain orders of Justice Henderson made on 28 April 2020 be set aside, that another judge hear the matter, that orders made on 30 July 2019 be enforced, that a recovery order be issued if the father does not comply with orders, make-up time and that the matter be transferred to Parramatta Family Court;
Summary of Argument filed 15 June 2020;
Case summary document filed 16 June 2020;
Case summary document filed 16 June 2020;
Affidavit of herself filed 6 July 2020;
Application in a Case filed 22 July 2020 seeking, inter alia, a personal protection order;
Affidavit filed 22 July 2020;
Affidavit of herself filed 31 August 2020.
Application in a Case filed 15 September 2020 seeking, inter alia, that the Orders of 9 September 2020 be stayed and ultimately vacated, for the father to pay the costs of a caveat to be placed back on the property if already removed by the father, and that a costs certificate be awarded to the mother for the costs of the application;
Affidavit of herself filed 15 September 2020;
Affidavit of herself filed 20 September 2020;
Application in a case filed 20 September 2020 seeking, inter alia, for an immediate injunction or stay on the Orders of 9 September 2020, and that the father provide an irrevocable authority to herself;
Affidavit of herself filed 30 September 2020;
Application in a Case filed 30 September 2020 seeking, inter alia, that Justice Henderson recuse herself from hearing the matter, that an Independent Children’s Lawyer be appointed, that the mother be given permission to subpoena her daughter to give evidence in relation to the application relating to personal protection orders, that the matter be transferred to the Parramatta Registry, that the father disclose his residential address;
Affidavit of herself filed 1 October 2020;
Application in a Case filed 1 October 2020 seeking, inter alia, a Review of Registrar Turner’s decision in listing her application filed 30 September 2020 on 9 October 2020, that the hearing of 9 October 2020 be adjourned, as well as near identical orders to those sought in the Application in a Case filed 30 September 2020;
Affidavit of herself filed 1 October 2020;
Affidavit of herself filed 1 October 2020;
Affidavit of herself filed 2 October 2020;
Affidavit of herself filed 4 October 2020;
Affidavit of Dr GG filed on behalf of herself on 4 October 2020;
Affidavit of Dr LLL filed on behalf of herself on 4 October 2020;
Affidavit of Ms FF filed on behalf of herself on 4 October 2020;
Affidavit of herself filed 4 October 2020;
Affidavit of herself filed 4 October 2020;
Affidavit of herself filed 4 October 2020;
Affidavit of herself filed 4 October 2020;
Affidavit of Dr GG filed on behalf of herself on 4 October 2020;
Affidavit of Ms FF filed on behalf of herself on 4 October 2020;
Affidavit of Dr LLL filed on behalf of herself on 4 October 2020;
Affidavit of herself filed 5 October 2020;
Affidavit of herself filed 8 October 2020; and
Affidavit of herself filed 8 October 2020.
In total, the mother has filed 13 applications and 44 affidavits since 28 April 2020.
Status of Proceedings
On 28 April 2020 I dismissed the contravention application the mother filed against the father, finding as part of the reason for the dismissal that the mother’s failure to comply with His Honours orders was the reason she was not spending face to face time with her child.
I dealt with all the mother’s extant applications as at 29 June 2020 at a hearing on 6 July 2020, save as to the vexatious litigant application, in my judgment dated 9 September 2020. Importantly, I granted the father’s application for removal of a caveat on the property which the mother refused despite there being no extant property applications on foot given confirmation of his Honour’s judgment by the Full Court on 26 May 2020.
Prior to delivery of this vexatious litigant judgment, the mother made an application for personal protection orders for herself and B, filed 22 July 2020, an application for leave to subpoena B to give evidence and for the appointment of an Independent Children’s Lawyer filed 30 September 2020, and an application for a review of a Registrar’s decision filed 1 October 2020. These applications are yet to be heard.
The mother’s change of venue application was dismissed on 9 September 2020 as there were then no outstanding applications on foot.
The Law in relation to Vexatious Litigants
Making an order that a party is a vexatious litigant is a serious step for a Court to take and this is particularly so where, as here, the applications primarily concern parenting and the mother is self-represented. The mother is at a significant disadvantage in being self-represented and her disadvantage is compounded by her rigid and fixed views. In so finding I mean no disrespect to the mother as she is clearly an intelligent woman. However, her rigid and fixed views have resulted in her spending no time with her daughter, a significant sadness for both of them, despite final orders providing she should spend time.
The mother has filed voluminous applications and material seeking time with her child, enforcement of time with her child and recovery orders when her failure to comply with his Honour’s orders of 30 July 2019 and 19 September 2019 is the root cause of her not spending time. This inability to see or accept the cause and effect is a significant disadvantage for the mother and has resulted in the father being barraged with applications and voluminous documentation in addition to preparing for multiple court hearings post the final hearing. The time and cost to the father in responding to the mother’s applications is significant and he is the sole carer and financial provider for the child currently.
The mother’s argument that she was unaware she could combine different orders of a different nature in the one application as a reason why she has on one occasion filed 3 applications in one week and 4, sometimes 5 affidavits on the same day and that when Registrars rejected her application for filing she had to re-file, a consequence of which is that it looks like more applications were filed than is really the case is rejected by me. The mother is an intelligent woman and her approach has been to barrage the Court and father with multiple applications in lieu of filing an appeal from a decision of mine that she disagrees with.
Further, the mother does not accept that the Court has a positive obligation to case manage matters before it . Nor does the mother accept the discretion of a judicial officer in determining whether an application is urgent not merely because a party asserts it is. Nor does the mother accept or appreciate the harsh reality of resource strapped Courts and that there are many hundreds of matters before the Court, all of which have a priority, and it is for judicial officers of the Court to determine that priority, not a litigant.
Section 45A(4) of the Act gives the Court power to deal with its processes enabling the Court to dismiss applications which are frivolous, vexatious or an abuse of process.
The mother’s multiple applications she has continued to file were in many instances vexatious and/or amounted to an abuse of process for they continued to raise issues that were not justiciable or had been determined to finality previously. However, I took the view that it was important to the mother and therefore for the child that the issues she raised in her applications be heard to finality and not as it were, summarily dismissed. This was a course to which she agreed.
My decision in how to deal with these multiple applications cost the father both time and money as he was required to respond and appear and he did so. The father has now sought I declare the mother vexatious to avoid a continuation of the costs, expense and time the mother’s conduct has imposed upon him and which must interfere with his parenting of the child. Given that currently the father is the child’s sole emotional, psychological and financial provider, the Court must ensure that B’s best interests are considered as part of the factual matrix to enable the father to maximise his parenting of her. It follows that this important responsibility should not be unnecessarily interfered with and responding to continual applications must have an impact on this important responsibility.
The Law leading up to sec 102QB - vexatious litigant order
Justice Kirby in Re Attorney-General; Ex Parte Skyring (1996) 135 ALR 29[3] at [31] – [32] said:
…it is regarded as a serious thing in this country to keep a person out of the courts. The rule of law requires that ordinarily a person should have access to the courts in order to invoke their jurisdiction. It is a rare thing to declare a person vexatious litigant. It is extremely rare in this court to use the power, whether under the inherent power or under O 63, to require leave before a person may commence proceedings invoking the court’s jurisdiction.
[3]Re Attorney-General; Ex Parte Skyring (1996) 135 ALR 29.
Vlug[4] is a decision by his Honour Justice Moss. At this time section 118 of the Act related to vexatious litigants rather than as now section 102QB.
[4] Above, note 2.
In that matter the then Chief Justice, Justice Nicholson, had made final orders making the husband and wife joint guardians of the children, awarding custody to the wife and ordering that the father spend alternate weekends with the children and on holidays.
The father appealed. That appeal was dismissed. The husband filed an application for special leave to the High Court. That was refused in 1997. In 1996 the husband filed two applications seeking orders the wife not remove a child from a school, dismissing orders restricting his involvement with the children’s school, orders that the wife involve him in decisions that she made in relation to the children and alleging she contravened orders by having the children christened.
As part of her response, the wife sought that the husband be declared vexatious. The husband also filed an application seeking residence orders. His Honour Justice Moss declined to order that the father be declared a vexatious litigant but expressed his concern that the husband had continued to file applications after the appeal from the final hearing had been dismissed, had caused the wife considerable expense in so doing, and had unsettled the children as their mother was require to expend time and energy in responding to the plethora of applications and affidavits he filed. Justice Moss dismissed the father’s two applications with costs and prohibited him from commencing any action or seeking a date for hearing of any application without leave of the Court.
Looking at the facts in Vlug,[5] the husband was entitled to complain about two things. Firstly, the wife had the children christened without letting him know and she changed the older child’s school without telling him as they were joint guardians of the children. His Honour’s decision was overturned on Appeal.
[5] Above, note 2.
These are not the facts here. The husband has engaged in no such conduct and has carried out his obligations to inform the mother of B’s communion processes, for example, considered her opinion, and advised her of his decision as Justice Baumann’s orders require him to do. He has contacted Suburb MM Contact Centre in June 2020 following its closure due to COVID-19 in March 2020 to enquire when and if they can provide supervised changeover. He advised the mother if she enrols at the centre for this service so will he and that they may be able to provide supervised changeover and her time can commence. Yet the mother refuses to do so. The father agreed to obtain an optometrists report for B given the mother’s concerns expressed in an application filed 17 May 2020 and he provided same to the mother. The mother has rejected the findings of the optometrist that there are no issues with the child’s sight. He ensures the child has regular telephone calls as his Honour’s orders require.
In Watson & Morton (2007) FLC 93-331[6] (“Watson”), the Full Court held that the then section 118 of the Act did not give a judge power to restrain someone from commencing proceedings simpliciter. Their Honours pointed out in Watson[7] that there is a clear difference between unsuccessful proceedings and frivolous or vexatious proceedings. I have determined previously that a number of the wife’s applications filed post the final hearing have been vexatious, an abuse of process or without merit. For example, resisting by way of filing a response to the father’s request to lift the caveat over the home to enable the husband to comply with his Honour’s orders and pay her entitlement to property after her Appeal was dismissed, is a vexatious position to take. The husband was required to bring an application to comply with his Honour’s orders such is the intransigence of the mother. This is but one example. However, whether that finding of a vexatious position is consistent with the meaning of vexatious under section 102Q of the Act is a matter I must now determine in these specific proceedings.
[6]Watson & Morton (2007) FLC 93-331.
[7] Above, note 6.
Section 102Q commenced in 2013 pursuant to the provisions of the Access to Justice (Federal Jurisdiction) Amendment Act 2012 (No 186 of 2012) and applied to proceedings commenced or transferred to the Court on or after 11 June 2013. Section 102QB, as did section 118, permits a Court to restrain a party from commencing new proceedings without first obtaining leave of the Court. That is the gravamen of my decision here.
Section 102QB is as follows.
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.
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.
(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.
(5) An order made under paragraph (2)(a) or (b) is a final order.
(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.
The section dealing with vexatious litigants is wide to enable the Court to tailor a specific order about a class of applications being brought by a litigant as opposed to the order applying to all applications that may be brought. Importantly a party against whom such an order is sought must be given an opportunity to be heard and the order is a final order.
The mother resists the father’s application that she be declared a vexatious litigant and she has been given opportunity to be heard on this and other issues on 6 July 2020, and 9 October 2020. The mother was aware as early as the hearing on 17 June 2020 that the father was seeking to declare her a vexatious litigant.
Section 102QB(2) of the Act gives the court power to make many types of different orders including staying or dismissing proceedings, the mechanism for leave to commence and any other order the court deems appropriate. This is an important aspect of ensuring that a party is not denied access to justice for there can be no doubt by making an order under this section and requiring leave be granted before a party can commence proceedings, a judge is significantly interfering with a party’s right to approach the court and have their application heard unimpeded.
The definition of vexatious proceedings is defined in section 102Q(1) of the Act as follows. This definition is not exhaustive and vexatious proceedings includes:
(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.
"vexatious proceedings order" means an order made under subsection 102QB(2).
(2) A reference in this Part to a person acting in concert with another person in instituting or conducting proceedings does not include a reference to a person who is so acting as a lawyer or representative of the other person.
It is important to note that the definition is inclusive not exclusive as paragraph 202 of the Explanatory Memoranda[8] accompanying the legislation sets out.
[8]Explanatory Memoranda Access to Justice (Federal Jurisdiction) Amendment Bill 2011.
His Honour Justice Benjamin in Acres[9] heard a similar application to this against a father. His Honour referred to case law in the New South Wales Supreme Court and referred to Marsden & Winch (2013) FLC 93-560[10] (“Marsden”), a seminal decision in this area when section 118 of the Act was the relevant section, and noted at paragraph 447 that the definition of “vexatious” adopted by the Full Court in Marsden[11] has to now be considered in the wider definition of section of 102Q(1) of the Act.
[9] Above, note 1.
[10]Marsden & Winch (2013) FLC 93-560.
[11] Above, note 10.
His Honour carefully canvassed what instances of “vexatious” litigation were and its meaning, as well as the parameters of “frequently instituting” in decisions of the Supreme Court of NSW to assist in understanding the meaning of the word “vexatious” and “frequently.” These are key words in the legislation I am now considering.
At [420], His Honour sets out the fundamental differences between section 118 and section 102Q of the Act, being that the test is no longer whether a court has frivolous or vexatious proceedings before it but rather whether or not there is a history of a person having frequently instituted or conducted vexatious proceedings and that vexatious proceedings are defined by statute under section 102Q(1). Thus, although I had made findings previously in judgments that some of the mother’s applications were vexatious that does not mean that they were so pursuant to section 102Q(1) of the Act.
It is axiomatic that if a court makes an order prohibiting a person from instituting proceedings they have a right to seek leave to commence those proceedings and this is precisely what section 102QE(2) of the Act provides. In a practical sense this is important as it does not prohibit a litigant from approaching the court to pursue an application but at the same time does not require a respondent to respond initially thereby avoiding incurring unnecessary expense, cost and delay.
Vexatious proceedings under the Act are dealt with under Part XIB as a result of the operation of the Access to Justice (Federal Jurisdiction) Amendment Act 2012 (No 186 of 2012).
There are two first steps required under the legislation. The first is to consider whether the proceedings are vexatious within the meaning of the Act, as per the definitions in section 102Q, and secondly, whether proceedings have been frequently instituted or conducted as per section 102QB(1)(a) of the Act .
His Honour in Acres[12] set out the pathway he intended to adopt at paragraph 440 as follows:
a)In accordance with 102QB(1) determine which proceedings constitute vexatious proceedings instituted or conducted in Australian courts or tribunals;
b)If there have been vexatious proceedings, then determine whether such proceedings have been conducted or instituted frequently. In that consideration, there is the ability to have regard to proceedings instituted (or attempted to be instituted) or conducted in any Australian court or tribunal and the person’s overall conduct in such proceedings, including compliance with orders made by the court or tribunal (including proceedings instituted (or attempted to be instituted) or conducted before the commencement of Part XIB of the Act); and,
c)If that threshold is met, then consider whether to exercise the discretion set out in 102QB(2) of the Act and make a vexatious proceedings order. In considering whether to make a vexatious proceedings order, I must consider the scope and nature of the orders sought by the person against whom a vexatious order is sought and made.
[12] Above, note 1.
I propose to adopt this pathway.
Which proceedings constitute vexatious proceedings instituted or conducted in Australian courts or tribunals
The first issue is whether the multiple proceedings or applications as they are referred to in this court filed by the mother are vexatious within the meaning of the Act.
Vexatious proceedings are defined under section 102Q of the Act as follows:
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 annoy, harass, cause delay or detriment, or for another wrongful purpose.
In the decision of Acres[13] at [444], his Honour identified that in Marsden[14] the Full Court comprising Chief Justice Bryant, Justices Ainslie-Wallace and Ryan discussed the test to be applied in determining whether proceedings are vexatious under section 118 of the Act.
[13] Above, note 1.
[14] Above, note 10.
In that endeavour, their Honours discussed Justice Roden’s decision in the Attorney General (NSW) v Wentworth (1988) 14 NSWLR 481[15] (“Wentworth”). Justice Roden ultimately concluded at [487] that that the meaning of the phrase “habitually and persistently and without any reasonable ground institutes vexatious legal proceedings” means something different from “habitually and persistently and without any reasonable ground institutes legal proceedings” and that determining whether proceedings are vexatious requires a subjective element such as “malice, lack of bona fides, or ulterior motive”[16] which give significance to the term vexatious. In that matter, his Honour was discussing the meaning of the phrase in in the context of section 84(1) of the relevant State legislation, a different section to 102Q of the Family Law Act 1975 (Cth). However, his Honour’s discourse on what it was to be vexatious is illuminating and he found that for proceedings to be held vexatious the court must apply more than a purely objective test. The Full Court majority in Marsden[17] agreed with Justice Roden’s position at paragraphs 152 and 153 of their judgment.
[15]Attorney General (NSW) v Wentworth (1988) 14 NSWLR 481.
[16] Above, note 15 at [487].
[17] Above, note 10.
In order to determine whether the proceedings instituted by the mother are vexatious I must turn to the findings made in the various hearings resulting from the filing of those applications and contained in judgments.
Findings
I have determined to limit the assessment of whether the mothers’ applications as filed are vexatious within the meaning of the Act to those filed after the delivery of the contravention judgment on 28 April 2020 for the following reasons.
I found in the contravention proceedings heard by me on 27 April 2020 that it was the mother who had failed to comply with his Honour’s orders and not the father, and that it was without merit for her to bring an application seeking he comply with orders when it was her failure that had resulted in her spending no time with her child.
Similarly, the mother was mistaken as to the father’s obligation regarding provision to her of B’s school reports and the like. The father’s obligation was to inform the school that the mother was to be provided with this information and the father said at that hearing that there was a school “app” which gave her the capacity to access this information online. The mother persisted that the father had to make sure the school carried out their obligation to her. This was not what the orders contemplated and it became clear the mother had not chosen to access the school “app.”
However, I accept that the mother’s interpretation of his Honour’s orders was that at that particular point in time she would be spending day time with her daughter without the necessity of changeover being supervised. I said at paragraph 23 of my judgment:[18]
Upon a strict reading of his Honour’s orders of 30 July 2019, the child and mother should now be spending time each second Saturday from 10 am to 6 pm, and, pursuant to his amended Orders of 19 September 2019, the changeover for B to come into her mother’s care should be occurring at UU Town service station.
[18]Meadows & Meadows (No 2) [2020] FamCA 325.
Further at paragraph 24:
The father agrees and cannot escape his position clearly set out in an SMS to the mother attached to her affidavit in support of the contravention of 11 February 2020 and this is his position, and I will read that SMS message out:
Hi Ms Meadows. As I have previously advised you, given that you have failed to comply with orders 4(a), 4(b), 5 and 6, I don’t believe that you can just skip those orders. So I will not be bringing B to UU Town this Saturday. If you would like to see B then I suggest that you contact Suburb MM Contact Centre as per the orders.
[…]
26. The mother argues the father has thereby breached his Honour’s Order of 30 July 2019, being order 4(c), and 19 September 2019, being Order 1(c) because he has not brought the child to the UU Town service station.
Ultimately, I determined this was a misguided interpretation of the orders finding at paragraphs 37 to 40 as follows:
37. The mother is mistaken and has not read correctly what his Honour reasoned and what his reasons were, and this was pointed out to me very well by Ms Smythe on behalf of the husband. Going to the stay application [at] paragraph 16 – [His Honour’s] decision of 24 October 2019 [19]– his Honour says this, and this encapsulates the submission of the father:
The effects of the orders were that after the initial period of six months, where changeovers were to occur at Suburb MM Contact Centre, the changeovers thereafter, which included every second Saturday from 10 to 6 unsupervised, would occur at the service station at UU Town. The mother says, as a result of a change of her circumstances, she is unable to afford or attend Suburb MM Contact Centre. Her application to vary orders which I have already indicated I cannot deal with suggests other place of changeover.
38. What his Honour had set out there at paragraph 16 was the basis of his original reasoning, being that after an initial period of the mother and child spending increasing periods of time together on a Saturday facilitated by changeover at a supervised contact centre the child and mother would go to unsupervised changeovers for a whole day of time, and he amended changeover to the UU Town service station. The fact of the matter is the mother has never attended for a supervised changeover on any occasion.
39. In his decision of 19 September 2019,[20] the variation Judgment, at paragraph 19 – and I have read this out and will read it out again as it is important, His Honour says, importantly:
I was anxious to provide an opportunity and hopefully an incentive to the mother to exercise unsupervised time with the child when she had refused to exercise, for the reasons she articulated, supervised time.
40. His Honour gave her that opportunity inconsistently with the Independent Children’s Lawyer and father’s position that there should be supervised time. He said, “No, it will be unsupervised time but that the changeover will be supervised for a period of six months.” None of this has occurred due to the mother’s refusal, failure, inability, for whatever reason, to attend on any occasion at Suburb MM Contact Centre.
[19]Meadows & Meadows (No 5) [2019] FamCA 848.
[20]Meadows & Meadows (No 4) [2019] FamCA 745.
Although the mother was unsuccessful in the contravention application, I could not say that the mother’s erroneous interpretation of his Honour’s orders was without foundation or that she in failing to comprehend what was required by his Honour’s orders prior to the father exercising sold parental responsibility was bringing an application without merit or for an ulterior purpose.
The mother’s motive in bringing the contravention application was clearly for her to commence spending time with her child. Given that the mother is self-represented, I could not say that the bringing of the contravention application was of itself vexatious within the meaning of section 102Q of the Act, although it clearly vexed the father when the finding made was that the mother had failed to comply with the orders, not him.
Following delivery of the contravention judgment on 28 April 2020, confirmed by publication on 6 May 2020, the mother could have been in no doubt what the Court had determined were the reasons she was not spending face-to-face time with her child, namely her incapacity to attend initially for time to commence by way of supervised changeover only, at Suburb MM Contact Centre. Further, until she did so her time with the child had not commenced pursuant to his Honour’s orders.
Further, she could have been in no doubt what his Honour’s orders meant in relation to the father exercising sole parental responsibility and his obligations vis a vis the mother, regarding the school notifying the mother of B’s events and forwarding school reports to her and the like, and his obligation in relation to telephone time. All these matters were raised by the mother at the contravention hearing by way of counts of breach against the father and were all dismissed.
Immediately after delivery of that judgment, and on 30 April 2020, the mother filed a further application seeking enforcement of Justice Baumann’s orders, that the application be heard by a judge other than myself, the child spend time with the mother on Mother’s Day, the changeover location be varied, a recovery order issue and the matter be transferred to Parramatta.
The mother filed two further applications on 1 May 2020 seeking, inter-alia, that the application be heard ex parte heard by a judge other than Justice Henderson, my orders of 30 March 2020 be set aside and the matter be transferred to Parramatta.
On 6 May 2020 the mother filed an application seeking, inter-alia, the application be heard ex parte, the application be heard by a judge other than Justice Henderson, the orders of Justice Henderson dated 30 March 2020 be set aside, the proceedings be transferred to Parramatta.
On 8 May 2020 the mother filed a further application seeking, inter-alia, the application be heard ex parte by the first available judge and that my orders of 30 March 2020 be set aside. Those orders provided that the mother’s remaining orders that I had not dealt with be heard on 17 June 2020.
The applications filed by the mother on 1 May 2020, 6 May 2020 and 8 May 2020 all dealt with seeking orders to effect her spending time with the child on Mother’s Day such as the issue of recovery order, and a recovery order to lie in the registry.
On 10 May 2020, the mother filed an amended application seeking, inter-alia, similar orders to that filed on 8 May 2020 and additionally seeking make up time for time missed on Mother’s Day.
On 17 May 2020, the mother filed an application seeking, inter-alia, ex parte orders to be made in Chambers on the papers, that the mother be permitted to take the child to obtain a psychological and optical assessment and a review of Senior Registrar Campbell’s procedural chambers orders preparing the matter for electronic hearing.
On 15 June 2020, the mother filed an amended application seeking, inter-alia, that some of the orders I made on 28 April 2020 be set aside pursuant to rule 17.02 of the Family Law Rules 2004, another judge hear the matter, that orders made on 30 July 2019 be enforced, that a recovery order issue if the father does not comply with orders, make up time, and that the matter be transferred to the Parramatta Registry of the Family Court of Australia.
On 22 July 2020 the mother filed an application seeking, inter-alia, personal protection orders for herself and the child.
On 17 June 2020. I heard the mother’s application that I be disqualified from further hearing the matter and dismissed that application in my oral judgment of 18 June 2020. In addition, I heard the mother’s application that I should set aside previous orders made by me under Rule 17.02 of the Family Law Rules 2004 and dismissed that application. I listed the remaining applications yet to be determined to a hearing on 18 August 2020. Fortunately I was able to bring that hearing forward to 6 July 2020 as time had become available.
In my orders of 18 June 2020 I had been specific in what I proposed to hear of the mother and father’s outstanding applications at the hearing on 18 August 2020 which hearing I was able to bring forward to 6 July 2020. Those specific applications were as follows:
a)For the mother:
i)An application for change of venue to Parramatta.
ii)Make up time for Mother’s Day time missed.
iii)Make up time for regular time missed.
iv)Enforcement of regular time pursuant to Justice Bauman’s orders of 30 July 2019 and 19 September 2019.
v)An optometry appointment for what the mother says has difficulty with B sight or eyes and a psychological report for B.
vi)Disclosure from the father in relation to any protection orders relating to any of the persons living in the home with B, AVOs relating to any persons living in the home with B or any involvement of B with any Family Consultants.
vii)A stay or variation of the sole parental responsibility order made by Justice Baumann being order two of the orders made 30 July 2019.
viii)If time between B and her mother is order to recommence, a recovery order to be issued to lie the registry in the event the father fails to provide B at changeover.
(f) For the father:
i)An application that the mother remove a caveat placed over the former matrimonial home.
ii)The mother be declared a vexatious litigant.
iii)The father’s response to the mother’s application to injunct the child from participating in a reconciliation, communion and confirmation at her local parish which was that her application be dismissed.
I noted the issues raised by the mother would have priority at the hearing.
In my oral judgment on 6 July 2020 following the hearing on 6 July 2020 I made the following findings.
I dismissed the mother’s application wherein she sought to prevent the father from exercising his sole parental responsibility and have B carry out communion, confirmation and reconciliation with her friends at the parish attached to the school she attended. I found this was a vexatious application and an abuse of process. This application was pursued without reasonable grounds as the father had complied with his obligation under the orders when exercising sole parental responsibility and the fact that the mother did not accept his decision was irrelevant to my determination.
I found that the evidence the mother relied upon as to why the child should not carry out her communion at this particular parish had nothing to do with the needs of the child, her best interests not being had regard to, or that the child was at risk in so doing. The mother’s reasons and objections were all related to the mother’s position about the doctrines and teachings at that particular parish, the individuals and priests at that parish and how badly she had been treated by those people in the past. B’s needs were lost in the mother’s needs.
On these findings the application was brought for an improper purpose as it was not bought to protect the child, or right a wrong, or correct a failure of the father but because the mother did not like the decision the father had made which he had a right to make at law. This was not a reasonable position particularly after my reasons in the contravention judgment had been delivered to the mother in April 2020. Thus, I find her application was vexatious within the meaning of the Act in that she brought the application so as to harass the father, cause delay resulting in B missing out on commencing her communion and to achieve a wrongful purpose namely her position being accepted as being in B’s best interests and thus satisfying what Justice Roden called the subjective aspect of the meaning of the word “vexatious” and falling within the definition of same under the Act.
In my judgment of 9 September 2020 following the hearing on 6 July 2020, I dismissed the mother’s various applications for recovery orders to issue and to lie in the registry to afford her make up time that she asserted she had missed due to the father’s failure to comply with orders of the court. I had clearly found in the contravention hearing and confirmed in my written judgment[21] that it was the mother’s failure to comply with his Honour’s orders that had resulted in this sad state of affairs of B not spending time with her mother. In light of those findings in a written and published judgment, for the mother to continue to bring applications seeking make up time and the issue of recovery orders is vexatious within the meaning of the section and is a re-litigation of issues already determined. The re-litigating of already determined issues is another factor referred to by Justice Roden in Wentworth[22] as part of the determination of whether an application is vexatious. I find these proceedings were vexatious within the meaning of the Act and without merit.
[21] Above, note 17.
[22] Above, note 15.
I dismissed her response to the father’s application that she remove the caveat placed on the home so that he could comply with his Honour’s orders and pay her monies to which she was entitled. This application was both vexatious and an abuse of process and that is clear on the facts as follows.
The mother’s reasons for resisting the father’s application that she remove the caveat were spurious. Her submissions and material amounted to an attack on the veracity of the Orders/Judgment issued by the Full Court and she further alleged that that if the father paid her the money she was entitled to, he would sell the house and be in breach of the Orders not to sell, which interim orders the mother described as a binding financial agreement.
Going to the second argument first. Once his Honour Justice Baumann delivered his final decisions in 2019, all interim orders were, in effect, discharged including an order the father not sell the home whilst the proceedings were on foot. Further, it was clear from the judgment the intention was that the home be the father’s once monies were paid to the mother. Thus, for the mother to hold up money being paid to her and then use that as a reason to resist his application to remove the caveat she had placed on the home because he may sell it is egregious conduct in the extreme.
The mother’s conduct in not removing the caveat after the Appeal was dismissed was obdurate and merely prolonged the ending of the parties’ financial relationship without any just cause.
As to the veracity of the orders issued by the Full Court on 26 May 2020, the mother argued that the Chief Justice and Attorney–General could interfere with the Full Court’s decision and orders issued. The Chief Justice of this Court and the Attorney-General of the Commonwealth of Australia cannot interfere with a decision of any judge let alone the Appeal Division of the Family Court of Australia.
The only option available to the mother is to file a special leave application to the High Court in relation to what she asserts are erroneous orders or a judgment issued or made by the Full Court. The mother has not done that, and was told this was her only recourse by letter from the Appeals Registrar dated 5 June 2020. To maintain her opposition to the father’s application in light of that letter was mischievous and vexatious. It was again the mother not complying with the orders or co-operating in bringing them into effect, not the father. I find this application is vexatious within the meaning of the Act
I dismissed the mother’s application to stay or vary the sole parental responsibility aspect of his Honour’s orders. The mother may not like the final orders his Honour made however they are the extant orders and particularly so since the Full Court dismissed her appeal, and the mother must abide by them. The mother demonstrated no change in her or the child’s circumstances warranting re-opening. Unfortunately, circumstances were as they had been prior to the final hearing, namely the mother and child not spending time together due to the mother’s inability to engage at any level with a Contact Centre. This was, sadly, precisely the position the mother and child were in prior to and after his Honour’s final judgment and orders. I found this application was without merit and was doomed to failure.
I dismissed the mother’s application to have the child psychologically assessed and to reopen the parenting matter 12 months after the decision had been delivered and two months after her appeal had been dismissed. This application was doomed to fail as a mother brought no new evidence which would impel a judge to reopen a parenting matter and the reality was that matters were precisely the same for B as they had been when Justice Baumann delivered his judgment, namely she was spending no face-to-face time the mother and not doing so for the same reason. I find this application was vexatious within the meaning of the Act and amounted to an abuse of process given the mother was the author of the difficulties she was experiencing and sought to re-involve the child in family law litigation due to her failure to comply with orders of the court.
I dismissed the mother’s application for make-up time for the Mother’s Day and weekend time on the basis that she had failed to comply with his Honour’s orders and time had not yet commenced between herself and her daughter. This had nothing to do with any failures of the father and is clearly vexatious within the meaning of the Act as she is re-litigating a matter already determined to finality in the uncontroverted contravention judgment I delivered on 28 April 2020 and published on 6 May 2020 .
I find the mother continues to bring these applications primarily because she does not agree with at least two of his Honour’s orders, namely that sole parental responsibility reside with the father and that her time with her child re-commence by way of supervised changeover for a limited period of time and does not accept my decisions yet files no appeal. Thus, to continue to re-litigate these issues is clearly an improper purpose and an abuse of the processes of the Court. The mother is merely attempting to re-litigate that which has been determined to finality and thus the applications are vexatious.
The mother has a right of appeal from my various decisions, yet rather than exercising this right she chooses to file further applications. For example, on 22 July 2020, the mother filed an application seeking personal protection orders for herself and B as against the father, asserting violence was being perpetrated upon her and the child by the father in relation to telephone communication with the child. On 30 September 2020 she sought orders that B be subpoenaed to attend Court to give evidence and answer fixed questions. The mother also sought that an Independent Children’s Lawyer be appointed for her on the basis she asserts B is being abused or harmed in some way in her father’s home, that the father be declared a vexatious litigant, and that the father be psychologically assessed.
These applications are yet to be heard but are misguided and if dismissed may amount to an abuse of the Court’s processes. The parents have not come into contact now for many years and have had minimal, if any, communication other than by way of filing and responding to the multitude of applications the mother has brought to the Court. If the mother was fearful of the father or for her child, her remedy was to make a complaint to the state police.
Her affidavit material demonstrated she had made a complaint in the past and the police did not take action, and the mother asserts the police are biased against her in some way. This displeased the mother and she tacked on to Family Court proceedings, which were at that time not yet finalised by way of judgment, further applications which simply continued the litigation, and are more likely, when heard, to be found to be without merit and perhaps amount to an abuse of process given the matter has been finalised by judgment and the child is living full-time with her father, the very person the mother sought the personal protection order against for her daughter.
Concerningly, on 6 October 2020, an undefended final AVO naming the father and his wife as protected persons and the mother with a prior surname of Peoples as the perpetrator, was made for 2 years. The mother vehemently disagrees she is the named perpetrator and she has her remedies in the Local Court.
I find that the mother’s applications have continued the dispute between her and the father, have not raised any new issues which the court would deal with as a part of its obligation to protect a child, and have been brought for ulterior purposes, namely re-litigating matters already determined to finality due to the mother disagreeing with the orders made both before Justice Baumann and myself. The reality is that it is the mother’s failure to comply with his Honour’s orders that has brought about this sad state of affairs of herself and her daughter spending no face-to-face time.
I find the mother’s proceedings filed after the contravention judgment was delivered on 28 April 2020 are vexatious within the meaning of section 102Q of the Act because of the following:
a)They have been brought for a wrongful purpose, namely to re-litigate a decision and subsequent orders which the mother does not agree with and which have been held correct by the Full Court of the Family Court;
b)They have been brought for a wrongful purpose, namely to re-litigate decisions I have made which have not been appealed and with which the mother disagrees;
c)They have been designed to harass and cause delay to the father in the exercise of his sole parental responsibility in relation to the child. For example, the child’s participation in communion, reconciliation and confirmation, spurious allegations that he neglects her health, emotional and psychological well-being and that he has perpetrated violence upon the child;
d)They have been designed to harass, cause delay and prolong litigation in relation to the father’s obligation to pay the mother her entitlement to property and she has raised clearly improper and spurious grounds to support the resistance to removing the caveat, being that the order issued by the Appeal Division of the Family Court was in some way improper or not correct. These arguments were bound to fail and her application resisting the removal of the caveat was groundless and clearly falls within the meaning of vexatious set out in this section; and
e)They have been filed for a wrongful purpose, namely to obtain a personal protection order under the Act when the New South Wales police would not provide the mother personal protection order under the relevant State legislation on the same set of facts and circumstances.
For these reasons I find that the filing by the wife of applications post the delivery of the contravention judgment on 28 April 2020 amount to vexatious proceedings within the definition of section 102Q of the Act.
The issue of “frequently”
I turn now to deal with the issue of “frequently instituting and conducting vexatious proceedings” within the meaning of section 102QB(1)(a) the Act, which I will also limit to after 28 April 2020 being the date upon which I delivered the contravention judgment.
Justice Benjamin sets out at paragraph 482 of his judgment in Acres[23] the 2011 Explanatory Memorandum as part of the enactment of section 102Q. The specific section in relation to “frequency” is as follows:
The threshold [that] will need to be met under paragraph 102QB(1)(a) is that a person has instituted or conducted vexatious proceedings in Australian courts and tribunals ‘frequently’. Clause 5 of the Standing Committee of the Attorneys-General vexatious proceedings model law provides a choice between this ‘frequency’ test and a test that requires a court to be satisfied that a person has ‘habitually and consistently’ persistently’ instituted and conducted vexatious proceedings, which was the traditional test.[24]
[23] Above, note 1.
[24] Above, note 8 at paragraph 210.
The meaning of the word “frequently” was considered by his Honour Justice Davies in Attorney General in and for the State of New South Wales v Gargan [2010] NSWSC 1192 where his Honour was determining the meaning of that word in relation to section 8(1)(a) of the Vexatious Proceedings Act 2008 (NSW). His Honour found at [7] that:
(a)the test of frequently is less demanding that the test that was required under s 84 Supreme Court Act 1970;
(b)the term “frequently” is a relative term and must be looked at in the context of the litigation being considered;
(c)the number of proceedings considered may be small if the proceedings are an attempt to re-litigate an issue already determined against the person;
(d)regard may be had to applications made by the person in proceedings commenced against that person;
(e)regard may be had to the way the person has behaved and conducted himself or herself in the proceedings before the Court;
(f)regard may be had to the proceedings in any Australian court or tribunal;
(g)regard may be had to the findings and result in the proceedings under consideration.
Justice Benjamin noted that this approach had been approved in 2013 by Justice Barker in the decision of Fuller v Toms [2013] FCA 1422, a more recent decision in the legislative history.[25] As Justice Benjamin correctly points at [488], the test of ‘frequently” is a less demanding test than that was previously required and that section 84 of the Supreme Court Act1970 is relevantly almost identical to section 102QB(1)(a) of the Family Law Act 1975 (Cth).
[25] Above, note 1 at [484].
The question of whether the mother has filed vexatious proceedings frequently is the second threshold to be met. It is an imperative of the legislative pathway that vexatious proceedings have been conducted frequently.
Going to the issue of the frequency of the mother’s applications. The mother has bought applications in relation to the following:
a)Seeking to re-open final parenting proceedings concluded 12 months earlier and two months earlier by way of dismissing an appeal on the issue of parental responsibility;
b)Bringing multiple applications for enforcement of Justice Baumann’s Orders of 30 July 2019 and 19 September 2019 in relation to her time with the child when it has been found that it is the mother’s failure to comply with his Honour’s orders that has resulted in the mother and child spending no face-to-face time;
c)Bringing multiple applications for make-up time, recovery orders and recovery orders to lie in the registry when it has been found the mother’s failure to comply with the orders is the source of the child and mother spending no time together;
d)Refusing to lift a caveat over the former matrimonial home to allow the husband to pay the wife her entitlement to property settlement following the dismissing of her appeal;
e)Filing of applications which have interfered with the father carrying out his obligations of sole parental responsibility in matters such as the Church where B takes her first communion, given both parents want B to participate in these important rites;
f)Complaints that the father neglects the child in relation to her eyesight;
g)That the father perpetrates abuse and violence upon the mother and the child in relation to interfering with telephone calls and communication;
h)Seeking that the child be psychologically assessed due to the mother’s concerns that the father is perpetrating family violence upon her;
i)Bringing an application that the father be declared vexatious litigant;
j)Bringing an application that the child be subpoenaed to attend Court and give evidence and that an Independent Children’s Lawyer be appointed for her; and
k)Bringing an application that the father be psychologically assessed.
The mother has filed 13 applications, 44 affidavits and 16 case summary/outlines and voluminous annexures since I delivered my judgment on 28 April 2020.
I note in passing that since his Honour delivered his judgment in July 2019 the wife has filed 28 applications and 93 affidavits together with numerous case summaries and outlines.
I find mother has frequently filed applications which are effectively a re-litigation by her of decisions that she does not agree with.
It is not just the bulk and the quantity of material that the mother has filed that is of concern but also the substance of her applications. They are repetitious and seek at law effectively the same remedy again and again, although the words used and sections cited may vary from application to application, and/or seek a review of applications that have already been determined or are the antithesis of a child’s best interests for example subpoenaing the child to come to Court to answer questions at age 8.
For example, the mother complains about the father’s failures which are simply not obligations he has at law or at this time as follows:
a)The mother persists that “I should be spending day time with my daughter every second Saturday and changeover should occur at UU Town”.
This is not correct as my contravention judgment pointed out.
b)That “The father does not inform me of decisions he makes about the child going to a school camp or on an excursion.”
The father has no obligation to so inform the mother as this is not a long-term decision but a day to day decision and he has no such obligation to inform her.
c)Filing an application that the father was neglecting the child as she had an eye problem and he would not treat it.
d)That the father was interfering with her telephone time when the mother’s evidence at the contravention hearing was that on occasions she and the child had conversations for over 20 minutes.
e)That the father was perpetrating family violence upon the mother and the child by interfering with the child’s telephone communication with the mother.
It is apparent that the mother does not accept the decision of the Court in relation to parental responsibility and B residing with the father. These various and multiple applications which the father has responded to are examples of the mother’s vexatious approach and misuse of the Court’s processes to further harass the father, and have little to do with B’s care.
The scope of the orders sought in the various applications the mother has filed traverse a significant number of separate issues dealing with the day-to-day care of the child and the mother’s assertion that the father failed to comply with the orders of the Court or is in some way neglecting or harming the child. The finding made is that it is the mother who has failed to comply with orders of the Court and that the father is not neglecting or harming the child.
Additionally, the mother constantly communicates with the Court by way of email and on one occasion in 8 July 2020 sent 10 emails in one day commencing at times early in the morning and ceasing late at night. At last count there were over 100 emails from the wife to the court dating from 7 July 2020 to the date of this judgment.
The mother’s behaviour is exceedingly difficult for the Court and for the father to deal with both in the way she conducts herself at hearings, conducted telephone for her and Microsoft Teams for the father, and in dealing with the bulk of documentation she files. Her documentation is voluminous, repetitive and, at many levels, is merely a recitation of her various complaints about the father, the court system, the police, the Department of Communities and Justice, local businesses and shopkeepers, Suburb MM and its citizens, contact centres, allegations that the father together with members of the Court are in some way conspiring against her and know people that she worked with and who have a set against her. There is very little in the mother’s material about B other than her groundless allegations that the father is harming her in some way. The stress the mother is experiencing in not spending time with her child is apparent in her affidavits, applications and conduct.
The mother talks over the top of the Judge in court. The mother speaks in a quick, anxious and heightened fashion and it is difficult to follow her argument. It is difficult to have the mother focus on what the Court is tasked to do and what it cannot do. A request she clarify a point she has made or to put in place protective orders for her in relation to a sale of the property can result in a soliloquy of well over five minutes or uncontained yelling . The mother simply cannot stay focused on what it is that impels the Family Court in relation to her child which is what is in the child’s best interest. The mother’s needs, fears and anxieties overwhelm any capacity to focus on the child’s needs as a priority and her needs, concerns and fears are at the forefront of her argument and documentation. The mother has refused, since at least these proceedings commenced, to engage with any therapist, psychologist or psychiatrist and will not seek any assistance to help her deal with her at times disabling anxiety and distress which is compounded in not spending time with her daughter.
On these facts I find the mother has commenced proceedings frequently in this Court. I find that those proceedings have been commenced by her for an ulterior purpose or, to use the language of section 102Q(1) of the Act, a “wrongful purpose,” which is to re-litigate that which has been determined to finality initially by Justice Baumann on 19 July and 30 September 2019 and confirmed by the Full Court on 26 May 2020, in the contravention judgment I delivered on 28 April 2020, 2 disqualification judgments of 18 June 2020 and 9 October 2020 and the judgment of 9 September 2020.
As Justice Benjamin says in the matter of Acres[26] at paragraph 518:
This procedure of making a vexatious proceedings order is a shield and in Family Law proceedings parties are or have been in a close personal relationship and these will remain. These proceedings involve a need to protect children. That need to protect children from litigation is a requirement which is contained in Division 12A of the Act. Section 67ZN provides a set of principles for conducting child-related proceedings. These include a direction for a court exercising powers to give effect to such principles in performing duties and exercising functions under Division VII of the act or otherwise. One of those principles is that the Court is to consider the needs of the child concerned and the impact that the conduct of the proceedings may have on the child in determining the conduct of the proceedings. Another is that the Court is to actively direct, control and manage the conduct of the proceedings that will safeguard the child concerned from being subjected to, or exposed to, abuse, neglect or family violence.
[26] Above, note 1.
Similarly, as his Honour found in that matter, I find in this matter that the father and the child have been adversely impacted by the vexatious proceedings brought by the mother and that the child is at further risk of harm from this continuing into the future. I too remain conscious as his Honour was at paragraph 520 of his judgment:
…that the remedy sought is extreme and deprives or restricts the [parent] of [their] unfettered right of access to a court.
The making of a vexatious litigant order in relation to the mother only restricts her capacity to bring applications in a Court exercising power under the Family Law Act 1975 (Cth) without first obtaining leave and does not impinge upon her capacity to institute proceedings in courts exercising power under other legislation. Courts exercising power under the Family Law Act 1975 (Cth) include the Family Court of Australia, Federal Circuit Court of Australia, Family Court of Western Australia and Local Courts is in some states. Further this order does not apply to applications filed before this judgment is delivered which must be dealt with in the usual course.
I must consider the scope of the order I propose to make relating to the vexatious finding. The scope of the order will affect proceedings proposed to be commenced by the mother under the Act against the father and/or about the father and or the child. These are proceedings I have determined place the child at risk of further harm into the future as they have adversely affected the father and child in the past and will do so in the future.
When making a vexatious order under the provisions of section 102QB of the Act, the provisions of 102QE(2) to (4) of the Act automatically apply, being that an application cannot be brought without leave and nor can the supporting affidavit and application be served unless the order is made granting leave to commence proceedings pursuant to section 102QG(1)(a). Given, however, that both the mother and father are self-represented, it is important that the orders I make are as fulsome and self-explanatory as is possible given the seriousness of the order I propose to make.
Having found that the mother’s applications filed after 28 April 2020 were vexatious within the definition of the Act section 102Q(1) and frequently brought within the meaning of the section 102QB(1)(a) of the Act, I will make an order declaring the mother vexatious within the meaning of section 102QB(2) of the Act.
I make the following orders by way of a vexatious proceeding order as set out in the commencement of this judgment.
I certify that the preceding two hundred and sixty-two (262) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Henderson delivered on 14 October 2020.
Associate:
Date: 14 October 2020
8
3