Morse & Duarte (No 8)
[2024] FedCFamC1F 639
•20 September 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Morse & Duarte (No 8) [2024] FedCFamC1F 639
File number(s): SYC 737 of 2014 Judgment of: HARPER J Date of judgment: 20 September 2024 Catchwords: FAMILY LAW – COSTS – Where the husband seeks costs in a fixed amount for parenting proceedings between November 2013 and December 2017, and on an indemnity basis for court events subsequent to November 2022 – Where the husband also seeks enforcement of prior costs orders made against the wife in fixed amounts which she has failed to pay – Where the wife was wholly unsuccessful in parenting proceedings – Where the wife’s refusal of a settlement offer was unreasonable – Where the wife’s numerous unmeritorious applications and belligerent conduct throughout proceedings was obstructive and time wasting – Where the actions of the wife caused the husband to incur unnecessary legal costs – Wife ordered to pay costs of the husband for the period November 2013 to December 2017 in the fixed sum of $250,000 – Wife ordered to pay costs of the husband for the period after November 2022 on an indemnity basis in the fixed sum of $133,979 – Existing orders for costs against the wife must be complied with – Power of the Court to prevent dissipation of money in aid of enforcement pursuant to r 11.07 in the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) – All costs orders to be satisfied from the wife’s share of proceeds from sale of matrimonial property.
FAMILY LAW – PRACTICE AND PROCEDURE – Where the husband seeks vexatious proceedings order against the wife pursuant to s 102QB of the Family Law Act 1975 (Cth) (“the Act”) – In the alternative the husband seeks harmful proceedings order pursuant to s 102QAC of the Act – Where wife has history of instituting applications without reasonable grounds – Where wife has obdurate inability to accept principle of finality – Where wife’s conduct inimical to public interest – Where wife has frequently instituted vexatious proceedings in Australian courts – Order made under s 102QB of the Act – Where if it had been necessary orders would also have been made under s 102QAC of the Act.
Legislation: Family Law Act 1975 (Cth) Pt VIII, ss 4(1), 64B, 102Q(1), 102QAC, 102QAG, 102QB, 102QG, 117
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 11.07
Explanatory Memorandum, Family Law Amendment Bill 2023 (Cth)
Cases cited: Atkins & Hunt (Costs) [2017] FamCAFC 131
D & D (Costs) (No 2) (2010) FLC 93-435; [2010] FamCAFC 64
Duarte & Morse [2016] FamCA 381
Duarte & Morse (No 4) (2024) FLC 94-192; [2024] FedCFamC1A 95
Duarte and Anor & Morse (2019) FLC 93-902; [2019] FamCAFC 93
Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania)) & Fish (2005) 33 Fam LR 123; [2005] FamCA 158
Harris & Dewell and Anor (No. 2) (2018) FLC 93-863; [2018] FamCAFC 180
In the Marriage of Schwarz (1985) FLC 91-618
Jensen and Jensen (1982) FLC 91-263
Kohan and Kohan (1993) FLC 92-340; [1992] FamCA 116
Limousin v Limousin (Costs) (2007) 38 Fam LR 478; [2007] FamCa 1178
Massalski & Riley (2022) 65 Fam LR 73; [2022] FedCFamC1F 36
MCG Group Pty Ltd v Ftrus Pty Ltd (Formerly Fortrus Pty Ltd) [2017] FCA 359
Moorcroft & Moorcroft (2020) 60 Fam LR 361; [2020] FamCAFC 83
Morse & Duarte (2017) 58 Fam LR 131; [2017] FamCA 1039
Morse & Duarte (No 2) [2022] FedCFamC1F 152
Morse & Duarte (No 4) [2023] FedCFamC1F 278
Morse & Duarte (No 5) [2024] FedCFamC1F 7
Morse & Duarte (No 6) [2024] FedCFamC1F 86
Morse & Duarte (No 7) [2024] FedCFamC1F 264
Munday v Bowman (1997) FLC 92-784
Official Trustee in Bankruptcy v Gargan (No 2) [2009] FCA 398
Parke & The Estate of the Late A Parke (2016) FLC 93-748; [2016] FamCAFC 248
Pencious & Searle (2017) FLC 93-805; [2017] FamCAFC 210
Potier v Attorney General (NSW) (2015) 89 NSWLR 284; [2015] NSWCA 129
Prantage & Prantage (Costs) [2014] FamCA 850
Re JJT; Ex parte Victoria Legal Aid (1998) 195 CLR 184; [1998] HCA 44
Rilak & Tsocas [2020] FamCA 49
Division: Division 1 First Instance Number of paragraphs: 108 Date of last submission/s: 26 August 2024 Date of hearing: 26 August 2024 Place: Sydney Counsel for the Applicant: Ms Reid Solicitor for the Applicant: Lander & Rogers The First Respondent: Litigant in person The Second Respondent: Did not participate ORDERS
SYC 737 of 2014 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR MORSE
Applicant
AND: MS DUARTE
First Respondent
MR TOLMAN (DECEASED)
Second Respondent
ORDER MADE BY:
HARPER J
DATE OF ORDER:
20 SEPTEMBER 2024
THE COURT ORDERS THAT:
Costs of the parenting proceedings - November 2013 to 1 December 2017
1.That the First Respondent Wife (“wife”) pay the Applicant Husband’s (“husband”) costs of and associated with the parenting proceedings in the fixed sum of $250,000, for the period from November 2013 to December 2017.
Costs incurred with Lander & Rogers – as and from November 2022
2.That the wife pay the husband’s costs of and associated with these proceedings as and from November 2022 on an indemnity basis in the fixed sum of $133,979.
Costs order dated 14 February 2018
3.That the wife pay the husband the sum of $5,750, pursuant to the orders made 14 February 2018, plus interest calculated pursuant to r 10.17 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“Rules”).
Costs order dated 1 September 2020
4.That the wife pay the husband the sum of $7,853.34, pursuant to the orders made 1 September 2020, plus interest calculated pursuant to r 10.17 of the Rules.
Costs order dated 7 September 2023
5.That the wife pay the husband the sum of $15,000, pursuant to the orders made 7 September 2023, plus interest calculated pursuant to r 10.17 of the Rules.
Costs order dated 2 February 2024
6.That the wife pay the husband the sum of $1,650, pursuant to the orders made 2 February 2024, plus interest calculated pursuant to r 10.17 of the Rules.
Costs order dated 18 April 2024
7.That the wife pay the husband the sum of $1,500, pursuant to the orders made 18 April 2024, plus interest calculated pursuant to r 10.17 of the Rules.
Costs order dated 7 June 2024
8.That the wife pay the husband the sum of $15,000, pursuant to the orders made 7 June 2024, plus interest calculated pursuant to r 10.17 of the Rules.
9.That pursuant to s 102QB of the Family Law Act 1975 (Cth) (“the Act”), the wife be restrained from instituting proceedings under the Act against the husband without leave of the Court pursuant to s 102QG.
Costs
10.That the wife pay the husband's costs of and incidental to his Applications in a Proceeding filed on 12 July 2024 and 25 July 2024 fixed in the sum of $5,000.
Source of funds
11.That the wife's liabilities, individually and in total, pursuant to these orders be met, to the extent possible, from the balance of the proceeds of sale of B Street, Suburb C, NSW (“Suburb C”) to be retained by the wife pursuant to Order 10(e) of the orders made 18 January 2024. For the purposes of this order, the total sum of $435,732.34 ordered in favour of the husband arising from these Applications in a Proceeding, is to be paid, to the extent possible, directly to the husband (from the wife's entitlement pursuant to Order 10(e)) from the trust account of the conveyancing solicitor engaged by the husband to act as the conveyancer for the sale of the Suburb C property.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonyms Morse & Duarte has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
HARPER J:
INTRODUCTION
These are property proceedings pursuant to Pt VIII of the Family Law Act 1975 (Cth) (“the Act”), with a long and tortuous history, between the applicant husband, Mr Morse (“the husband”) and the respondent wife, Ms Duarte (“the wife”).
The second respondent was the wife’s former partner, Mr Tolman, who passed away this year. Subject to one proposed order for costs, none of the applications determined by this judgment affect Mr Tolman or his estate. I do not propose to make any orders against the estate. However, it will be necessary to mention Mr Tolman’s involvement during the course of these reasons.
BACKGROUND
For present purposes, it is necessary to refer to some aspects of the lengthy and convoluted procedural history.
Final judgment was delivered by Le Poer Trench J (as he then was) on 1 December 2017 (Morse & Duarte (2017) 58 Fam LR 131 (“Morse & Duarte”)). As a result of this judgment the children of the relationship were placed in the sole care of the husband.
Orders were also made for division of matrimonial property. Specifically, Le Poer Trench J concluded B Street, Suburb C NSW (“Suburb C”), which was purchased by the wife and Mr Tolman, was held by them on constructive trust for the husband and the wife in equal shares as tenants in common. This conclusion was overturned on appeal and the proceedings remitted for further hearing on property issues only (Duarte and Anor & Morse (2019) FLC 93-902 (“Duarte & Morse”)).
On 18 January 2024, I delivered final judgment in the remitted property proceedings. A more detailed background is set out in that judgment: Morse & Duarte (No 5) [2024] FedCFamC1F 7 (“remitter judgment”). Some other relevant background is set out in an earlier judgment, Morse & Duarte (No 2) [2022] FedCFamC1F 152 (“Morse & Duarte (No 2)”) at [4]–[31] wherein I dealt with a summary dismissal application by the wife which was unsuccessful. I refer to but will not repeat what I have set out in earlier judgments unless necessary for this judgment.
This judgment deals with two Applications in a Proceeding filed by the husband. The first is a Third Amended Application in a Proceeding filed on 25 July 2024, seeking costs arising from the original parenting proceedings between November 2013 and December 2017, and court events subsequent to November 2022 (“costs application”). The second is an Application in a Proceeding filed on 12 July 2024 which seeks that the wife be restrained from instituting proceedings against the husband pursuant to s 102QG of the Act as a vexatious litigant, or in the alternative, as harmful proceedings pursuant to s 102QAG and costs arising from that application (“injunction application”).
In relation to the costs application filed by the husband the wife relied on the following material:
(a)Response to Application in a Proceeding filed 17 April 2024;
(b)Affidavit of Ms Duarte filed 24 July 2024; and
(c)Amended written submissions sent to my chambers on 26 August 2024.
The wife did not file a Response to the costs application filed on 25 July 2024, but relied upon a response filed in answer to an earlier version of the husband’s costs application. She did file written submissions resisting any order for costs against her. Although the wife filed her amended written submissions out of time, I have had regard to them.
The husband relied on the following material:
(a)Case Outline filed 22 August 2024;
(b)Third Amended Application in a Proceeding filed 25 July 2024 (“costs application”);
(c)Affidavit of Mr Morse filed 15 February 2024;
(d)Application in a Proceeding filed 12 July 2024 (“injunction application”);
(e)Affidavit of Mr Morse filed 12 July 2024; and
(f)Written submissions filed 8 March 2024.
On 25 July 2024 I listed the injunction application for interim hearing on 26 August 2024. I ordered that the wife was to file any responsive affidavit material upon which she proposed to rely by no later than 12 August 2024 and a brief case outline on or before 22 August 2024. No responsive material was filed by the wife in respect of this application.
ORDERS SOUGHT AS TO COSTS
The costs orders sought by the husband have some complexity so it is helpful to set them out at length, as follows:
THE COURT NOTES:
1.The following definitions for the purposes of these Orders
1.1. “Applicant” means [Mr Morse];
1.2. “First Respondent” means [Ms Duarte];
1.3. “Second Respondent” means the estate of [Mr Tolman] (Deceased); and
1.4. “the [Suburb C] property” means the property situated at [B Street, Suburb C], in the State of New South Wales.
Costs of the parenting proceedings - November 2013 to 1 December 2017
6. That the First Respondent pay the Applicant's costs of and associated with the parenting proceedings in the fixed sum of $288,366, being approximately 65% of the total costs incurred by the Applicant from November 2013 to December 2017.
7. That in the alternative to Order 6 above, the First Respondent pay the Applicant's costs of and associated with the parenting proceedings during the period November 2014 to December 2017 on such basis as the Court deems appropriate and in an amount as determined by the Court.
Costs incurred with Lander & Rogers – as and from November 2022
8. That the First Respondent pay the Applicant's costs of and associated with these proceedings as and from November 2022 on an indemnity basis in the fixed sum of $133,979.00.
9. That in the alternative to Order 8 above, the First Respondent pay the Applicant's costs of and associated with these proceedings as and from November 2022 on a party/party basis in the sum of $93,785.30.
10. That in the alternative to Orders 8 and 9 above, the First Respondent pay the Applicant's costs of and associated with these proceedings as and from November 2022 at scale in the sum of $78,181.29.
Costs order dated 14 February 2018
11. That the First Respondent pay the Applicant the sum of $5,750.00, pursuant to the Orders made 14 February 2018, plus interest calculated pursuant to rule 10.17 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021.
Costs order dated 1 September 2020
12. That the First Respondent pay the Applicant the sum of $7,853.34, pursuant to the Orders made 1 September 2020, plus interest calculated pursuant to rule 10.17 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021.
13. That the Second Respondent pay the Applicant the sum of $7,853.34, pursuant to the Orders made 1 September 2020, plus interest calculated pursuant to rule 10.17 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021.
Costs order dated 7 September 2023
14. That the First Respondent pay the Applicant the sum of $15,000.00, pursuant to the Orders made 7 September 2023, plus interest calculated pursuant to rule 10.17 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021.
Costs order dated 2 February 2024
15. That the First Respondent pay the Applicant the sum of $1,650.00, pursuant to the Orders made 2 February 2024, plus interest calculated pursuant to rule 10.17 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021.
Costs order dated 18 April 2024
16. That the First Respondent pay the Applicant the sum of $1,500.00, pursuant to the Orders made 18 April 2024, plus interest calculated pursuant to rule 10.17 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021.
Costs order dated 7 June 2024
17. That the First Respondent pay the Applicant the sum of $15,000.00, pursuant to the Orders made 7 June 2024, plus interest calculated pursuant to rule 10.17 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021.
Costs of this Application
18. That the First Respondent pay the Applicant's costs of and incidental to this Application on an indemnity basis fixed in the sum of $5,781.00
19. That in the alternative to Order 18 above, the First Respondent pay the Applicant's costs of this Application on such basis as the Court deems appropriate and in an amount as determined by the Court.
Source of funds
20. That the First Respondent's liability pursuant to these Orders be met, to the extent possible, from the balance of the proceeds of sale of the [Suburb C] property to be retained by the First Respondent pursuant to Order 10(e) of the Orders made 18 January 2024. For the purposes of this Order, the sum of any costs order(s) made in favour of the Applicant arising from this Application is to be paid, to the extent possible, directly to the Applicant (from the First Respondent's entitlement pursuant to Order 10(e)) from the trust account of the conveyancing solicitor engaged by the Applicant to act as the conveyancer for the sale of the [Suburb C] property.
The wife filed a Response to Application in a Proceeding on 17 April 2024, seeking the following orders:
1.That the Second Amended Application in a Proceeding, of 15 February 2024, be dismissed.
2.That the orders of the Honourable Justice Le Poer Trench, of 1 December 2017, not set aside by the Full Court of the Family Court of Australia (the Full Court), as it was, on 6 June 2019, be set aside.
3.That orders (3), (7) and (8), of the Full Court, of 6 June 2019, be set aside.
(Interlocutory)
1.That the First Respondent, on or before close of the registry, on 20 June 2024, file, and serve, any evidence, and submissions, to be relied upon, to support the orders that she seeks.
2.That the Applicant, on or before the close of the registry, on 18 July 2024, file, and serve, any further evidence, and submissions, to be relied upon, in reply to the materials filed, by the Applicant.
3.That the Amended Application in a Proceeding, and Response, be set down for hearing, after the determination of the appeal NAA 22 of 2024.
The orders sought by the husband fall into two categories. In the first category are proposed orders for costs in his favour relating to the parenting issues between November 2013 to 1 December 2017 and then for the period after November 2022. These require consideration of the principles relating to costs orders in this jurisdiction. In the second category are costs orders already made against the wife. There is no application to vary or discharge these orders and they are all for a fixed amount. The only question therefore is how these orders are to be enforced. I will deal with the orders seeking costs first.
PRINCIPLES REGARDING COSTS
The relevant principles with respect to the award of costs in this Court are well settled, and have been discussed many times (e.g. Parke & The Estate of the Late A Parke (2016) FLC 93‑748, followed in Atkins & Hunt (Costs) [2017] FamCAFC 131). The Court has a wide discretion, which is to be exercised judicially.
In proceedings to which the Act applies, the starting point is that each party shall bear his or her own costs (s 117(1)). If, however, the Court is of the opinion that there are justifying circumstances, the Court may make such order as to costs and security for costs as the Court considers just (s 117(2)). This means costs in the conventional sense, that is, full or partial indemnification for another’s liability for professional fees and out of pocket expenses reasonably incurred in the litigation (Re JJT; Ex parte Victoria Legal Aid (1998) 195 CLR 184 per Hayne J at [98], with whom the majority agreed).
When considering what, if any, order for costs should be made, the Court must have regard to the factors set out in s 117(2A):
(2A)In considering what order (if any) should be made under subsection (2), the court shall have regard to:
(a) the financial circumstances of each of the parties to the proceedings;
(b)whether any party to the proceedings is in receipt of assistance by way of legal aid and, if so, the terms of the grant of that assistance to that party;
(c)the conduct of the parties to the proceedings in relation to the proceedings including, without limiting the generality of the foregoing, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answer questions, admissions of facts, production of documents and similar matters;
(d)whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court;
(e)whether any party to the proceedings has been wholly unsuccessful in the proceedings;
(f)whether either party to the proceedings has made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer; and
(g)such other matters as the court considers relevant.
It is well settled that no one factor in s 117(2A) has priority, nor must more than one factor be satisfied; rather, any one factor may be sufficient (Prantage & Prantage (Costs) [2014] FamCA 850 at [12]; Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania)) & Fish (2005) 33 Fam LR 123 at [41]).
So the first question is whether the husband has established any circumstances which justify departing from the position that each party pay their own costs, and the making of a costs order in his favour. The further question is the basis upon which any costs award should be calculated.
DISCUSSION
Section 117(2A)(a) – the financial circumstances of the parties
On 20 March 2023 the matter was set down for final hearing in January 2024. I made orders for the parties to prepare a joint balance sheet and to file an updated financial statement. The wife did not file a financial statement and no balance sheet was received.
The husband in his submissions referred to the wife’s affidavit filed on 30 January 2024 where she annexed Notices of Assessment for the last three financial years which declared a combined taxable income of $83,423. Otherwise, the financial position of each party can be gleaned to some extent from the outcome ordered in the remitter judgment, to which I have had regard.
The husband has care of the parties’ three children and the financial benefit of the property adjustment orders made in the remitter judgment. The wife has care of two children resulting from her relationship with Mr Tolman.
The financial circumstances of both parties are modest. I accept the husband is in a slightly better financial position than the wife at present, but in any event, impecuniosity is no bar to a costs order being made (In the Marriage of Schwarz (1985) FLC 91-618).
Section 117(2A)(c) – the conduct of the parties
The husband argued that the wife conducted the litigation in a manner which was disproportionate to the complexity of proceedings.
A total of at least 34 applications or appeals have been brought by the wife since these proceedings were commenced, summarised as follows:
(a)Application in a Case filed 27 May 2014
(b)Application in a Case filed 13 June 2014
(c)Application in a Case filed 16 June 2014
(d)Application in a Case filed 17 June 2014
(e)Application in a Case filed 9 July 2014
(f)Application in a Case filed 1 October 2014
(g)Application in a Case filed 6 November 2014
(h)Application in a Case filed 4 December 2014
(i)Application in a Case filed 11 December 2014
(j)Application in a Case filed 19 February 2015
(k)Application in a Case filed 19 February 2015
(l)Contravention Application filed 4 May 2015
(m)Application in a Case filed 11 November 2015
(n)Application in a Case filed 27 November 2015
(o)Application in a Case filed 11 February 2016
(p)Amended Response to Application for Final Orders filed 17 February 2017
(q)Notice of Objection filed 13 June 2017
(r)Application in a Case filed 20 June 2017
(s)Notice of Appeal filed 28 December 2017
(t)Stay Application filed 28 December 2017
(u)Contravention Application filed 4 May 2018
(v)Application in a Case filed 13 June 2018
(w)Application in a Proceeding filed 9 September 2020
(x)Contravention Application filed 17 September 2021
(y)Notice of Appeal filed 15 December 2021
(z)Notice of Appeal filed 7 April 2022
(aa)Application in a Proceeding filed 8 April 2022
(bb)Application in a Proceeding filed 22 February 2023
(cc)Application in a Proceeding filed 22 March 2023
(dd)Application in a Proceeding filed 22 March 2023
(ee)Notice of Appeal filed 9 May 2023
(ff)Notice of Appeal filed 29 January 2024
(gg)Application in a Proceeding filed 30 January 2024
(hh)Application in a Proceeding filed 9 April 2024
It can be seen that in the period between the commencement of the proceedings on 12 February 2014 by the husband and 1 December 2017 the wife filed 18 interlocutory applications. Of these, 16 related to parenting issues. For the period after November 2022 the wife filed five applications and two appeals.
Section 117(2A)(e) – whether either party has been wholly unsuccessful
The husband submitted the wife was wholly unsuccessful with respect to the parenting proceedings. I accept this is substantially correct. Before Le Poer Trench J, the mother proposed no parenting orders be made. But Le Poer Trench J found that the wife saw no value to the children having a meaningful relationship with the husband, viewing him as of low intelligence, not worthwhile or wholesome, and less worthy than Mr Tolman. But despite this unpleasant attitude of disdain, as mentioned, the children were placed in the sole care of the father, with limited telephone contact with the mother (Morse & Duarte at [17], [613]–[614], [676]–[710]).
It is important to note that, as specified in s 64B of the Act, the parenting orders made by Le Poer Trench J were made in favour of the husband.
The husband gave evidence that in the period to December 2017, among the numerous applications filed by the wife were many which failed and should never have been brought. Examples are applications seeking to prevent the proceedings being placed in the Magellan List, to suppress or “quash” Notices of Risk filed by the husband, and an application seeking certiorari to quash a Form 4 filed by the Independent Children’s Lawyer (“ICL”) and the husband.
Further examples are: on 11 November 2015 the wife filed an application seeking untenable orders such as an order the Court pay compensation of $50,000 to each of herself, Mr Tolman and the children and that a Family Consultant apologise to her. This was followed by a further application on 27 November 2015 which sought, inter alia, this Court, the ICL and any court officer who had communicated with a particular expert pay her damages of $39,000,000 and a particular judge be ordered to take two years leave without pay.
On 4 May 2015, the wife filed a contravention application which was dismissed as wholly unsuccessful.
The wife made several unsuccessful attempts to vacate the final hearing listed before Le Poer Trench J.
In the period after November 2022, the wife made a number of further unsuccessful applications which lacked merit and in respect of which costs were reserved. The application filed on 22 February 2023 was dismissed on 24 February 2023. The two applications filed on 22 March 2023 seeking summary dismissal or permanent stay of the husband’s application for final orders and a range of miscellaneous orders, were all dismissed on 12 April 2023 in Morse & Duarte (No 4) [2023] FedCFamC1F 278 (“Morse & Duarte (No 4)”).
After the remitter judgment was delivered on 18 January 2024, she made two unsuccessful applications seeking a stay pending appeal, one of which lacked bona fides (Morse & Duarte (No 6) [2024] FedCFamC1F 86) and the other relied on grounds of appeal with no prospects of success (Morse & Duarte (No 7) [2024] FedCFamC1F 264 (“Morse & Duarte (No 7)”). Both resulted in costs orders against her, for which the husband now seeks payment.
As long ago as 1982, Nygh J said in Jensen and Jensen (1982) FLC 91-263 at 77,472:
…if as a result of non-cooperation, obstructiveness or otherwise, one of the parties causes the conduct of the proceedings to be unduly prolonged or made unduly expensive to the other side, clearly an order for costs would be warranted.
Without the need to rehearse the evidence in detail, the husband’s affidavit satisfied me that throughout the proceedings the wife conducted herself in an uncooperative, belligerent and obdurate manner which caused the complexity of the proceedings to be unnecessarily exacerbated, wasted an inordinate amount of Court resources and delayed the finalisation of the proceedings which caused the husband’s costs to be unnecessarily enlarged.
Section 117(2A)(f) – offers in writing
By letter dated 27 November 2013, the husband’s solicitors conveyed an offer to the wife’s solicitors which proposed a resolution of the parenting issues including shared parental responsibility, that the children live with the mother and spend time with the father in accordance with a specific regime. The result in the parenting proceedings was clearly vastly less favourable to the wife.
The husband referred to an offer made by the wife on 10 February 2023. The offer was for all applications before this Court to be withdrawn, for the husband to pay the wife $400,000 or an alternative weekly sum, and for the husband to pay the wife the sum of $1,500,000 upon receipt of the inheritance from the estate of his mother. The offer was not accepted. It was plainly unreasonable in the circumstances of these proceedings.
On 15 March 2023, the husband made an offer of settlement to the wife. The offer was rejected. The offer in summary proposed the wife pay the husband $950,000 in default of which the wife would be ordered to vacate Suburb C which would then be sold by the husband, with him to receive $950,000 from the proceeds and the balance to the wife, subject to various usual adjustments. The final result in the remitter judgment was less favourable to the wife in that she was not given any opportunity to refinance Suburb C to retain it, and the property was ordered to be sold with the husband to retain 70 per cent of the proceeds less adjustments. I note that on a value of $1,300,000 for Suburb C, after adjustments, the husband would receive an amount close to, or slightly less than, $950,000 as proposed in his offer.
The offer dated 15 March 2023 was clearly reasonable. If the wife had accepted it, the proceedings would have been brought to a close about a year earlier than the remitter judgment without any intervening costs being incurred, including the costs of the remitter hearing itself.
Section 117(2A)(g) – such other matters as the court considers relevant
The husband pointed out that the wife’s claim to be medically unfit to participate in the final hearing listed for 15 January 2024 was inconsistent with her nonetheless continuing to file multiple applications in the following weeks. The husband argued her request for an adjournment, and later applications for stay pending appeal, constituted conduct which intended to deliberately prolong proceedings and waste the Court’s resources at cost to the husband. I accept this is correct.
CONCLUSION ON JUSTIFYING CIRCUMSTANCES
Generally throughout the proceedings, the persistent applications of the wife which mostly failed and many of which were specious and time wasting, her obstructive and belligerent conduct generally and her unreasonable refusal of the offer made on 15 March 2023 are all factors which justify a costs order against her. For the period November 2013 to December 2017 in relation to parenting issues, the wife was wholly unsuccessful.
In relation to that period, the evidence of the husband satisfies me that the figure of $288,366 represents approximately two thirds of his costs in that period. He proposed an order that he be paid this amount as a fixed sum. I accept that in the long difficult history of these proceedings it is appropriate to fix a sum for costs rather than compel the parties to undertake further litigation and disputation through an assessment of costs. However, I consider a discount to $250,000 is the appropriate amount bearing in mind the considerable difficulty, if not impossibility, of reaching a sensible degree of precision for the husband’s costs as between property and parenting issues, even for the period between November 2013 and December 2017.
The wife’s written submissions did not advance any alternative propositions which undermined the force of the factors justifying a costs order against her. At the interim hearing she made oral submissions which were largely irrelevant to the question of costs. Her general argument was that as the husband was, in her words, the “winner” in the proceedings and she had not “wronged” him there was no normative basis by which to depart from the presumption that each party shall bear their own costs. I reject this argument.
The wife will be ordered to pay the husband’s costs of the proceedings for the period November 2013 to December 2017 fixed in the sum of $250,000.
INDEMNITY COSTS
The husband also sought an order for his costs after November 2022 be paid on an indemnity basis in the fixed amount of $133,979.
The award of indemnity costs in this Court has regularly been called a significant departure from the normal standard, rare, and requires something exceptional: Harris & Dewell and Anor (No. 2) (2018) FLC 93-863, where the Full Court said:
23. In Kohan and Kohan, the Full Court held, in applying the principles expounded by Sheppard J in Colgate-Palmolive, that an order for indemnity costs represents a “very great departure from the normal standard”. In the later decision of the Full Court in Prantage & Prantage, Thackray and Ryan JJ referred to Kohan and other authorities in the Full Courts of both this Court and the Federal Court of Australia as well as the state appeal courts. Their Honours concluded (at [86]) that the “usual rule” continued to apply in respect of awards of costs in this Court notwithstanding the Full Court accepting that the difference between party/party costs and a party’s actual costs has continued to grow significantly.
24. That proposition also derives support from what Callinan J said in Arundel Chiropractic Centre Pty Ltd v Deputy Commissioner of Taxation. His Honour said that an order for indemnity costs should “be exceedingly rare, as they have a tendency to encourage extravagance and put the quantum of legal fees beyond the effective scrutiny of the courts and their taxing officers”.
25. The rarity of an order for indemnity costs can also be seen illustrated by the comments of Lindgren J in NMFM Property Pty Ltd v Citibank Ltd (No 2), referred to by their Honours in Prantage (at [102] – [103]). Lindgren J said that there is no rule that indemnity costs will be ordered “where the losing party was guilty of ethical or moral delinquency in the antecedent facts which have given rise to the litigation.”
(Footnotes omitted)
The Full Court in Moorcroft & Moorcroft (2020) 60 Fam LR 361 confirmed that indemnity costs are awarded only in exceptional circumstances (see also Kohan and Kohan (1993) FLC 92-340; Limousin v Limousin (Costs) (2007) 38 Fam LR 478; D & D (Costs) (No 2) (2010) FLC 93-435).
The husband relied on several authorities (Munday v Bowman (1997) FLC 92-784 at 84,660; MCG Group Pty Ltd v Ftrus Pty Ltd (Formerly Fortrus Pty Ltd) [2017] FCA 359) in his written submissions that indemnity costs are warranted on the basis the wife engaged in prolonged improper conduct and abuse of court processes, he specifically pointed to her filing applications and appeals without merit and making baseless allegations of fraud and corruption.
I broadly accept this argument. Although costs of appeals are dealt with by the Full Court, in this Court, as described above at [24]–[26], the wife’s persistence with belligerent but unjustified conduct, and numerous unmeritorious applications plainly in my view not only wasted the time of the Court but caused the husband to incur costs and expend time and energy to an extent massively disproportionate to the real issues in dispute. Her refusal of the offer made on 15 March 2023 was unreasonable and imprudent. These factors each alone and in combination reach the exceptional standard required for indemnity costs.
I am persuaded that the wife should be ordered to pay the husband’s costs of the period after November 2022 on an indemnity basis in the fixed amount of $133,979.
Outstanding costs orders against the wife
The existing orders for costs made against the wife and which remain unpaid total $46,753. These orders must be complied with.
SOURCE OF PAYMENT
The husband proposes that all the costs orders in his favour be satisfied from the wife’s share of the proceeds of sale of Suburb C.
The Court has broad powers in r 11.07 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) to enforce an obligation to pay money. The Court may make orders declaring the amount owed under an obligation to pay money, stating when it must be paid (r 11.07(a) and r 11.07(b)), for enforcement of an obligation to pay money (r 11.07(d)), in aid of the enforcement of an obligation to pay money (r 11.07(e)), to prevent the dissipation or wasting of property (r 11.07(f)), or for costs (r 11.07(g)).
I repeat for present purposes the view I expressed in Massalski & Riley (2022) 65 Fam LR 73 at [153] that these powers permitted the Court to impose a charge over property to prevent dissipation of money in aid of enforcement:
153. The husband argued that the Court has enforcement powers in relation to obligations for the payment of money. They are now found in r 11.07 of the new Rules. Rule 11.07(e) empowers the Court to make an order “in aid of the enforcement of an obligation”. This is a broad discretionary power. The husband also points out that his application for the appointment of receivers remains on foot, and that a charge supporting a caveat over Unit 1 F Street would prevent the dissipation of Unit 1 F Street as an asset. Rule 11.07(f) specifically empowers the Court to make an order “to prevent the dissipation or wasting of property”. He argues that the conduct of the wife in failing to make any payment of the outstanding costs order, while filing numerous applications which constitute an abuse of process, demonstrates that the wife is unlikely to make payment and will use strategies, as the Full Court found, to avoid payment. I accept this is correct. In the circumstances, the Court has the power to make the order sought and such an order is appropriate.
Similar considerations are present here. The wife has failed to make any payment of costs ordered against her over more than a decade, while engendering, as already explained, further excessive costs. I am satisfied there is no prospect of any costs orders against her being satisfied by simply ordering the wife to make payment.
I am satisfied the Court has the power to make an order as proposed by the husband, and I will so order.
VEXATIOUS OR HARMFUL PROCEEDINGS
The husband’s injunction application filed on 12 July 2024, seeks the following orders:
1.That pursuant to section 102QB of the Family Law Act 1975, the First Respondent be restrained from instituting proceedings under the Act against the Applicant without leave of the Court pursuant to section 102QG.
2.That in the alternative to Order 1 above, pursuant to section 102QAC of the Family Law Act 1975, the First Respondent be restrained from instituting proceedings under the Act against the Applicant without leave of the Court pursuant to section 102QAG.
3.That the First Respondent pay the Applicant’s costs or and incidental to this Application on an indemnity basis.
4.That in the alternative to Order 3 above, the First Respondent pay the Applicant’s costs of this Application on such basis as the Court deems appropriate and in an amount as determined by the Court.
5.That the First Respondent’s liability pursuant to Order 3 or 4 herein be met, to the extent possible, from the balance of the proceeds of sale of the [Suburb C] property to be retained by the First Respondent pursuant to Order 10(e) of the Orders made 18 January 2024.
6.For the purposes of Order 5, the sum of any costs order made in favour of the Applicant arising from this Application is to be paid, to the extent possible, directly to the Applicant (from the First Respondent’s entitlement pursuant to Order 10(e)) from the trust account of the conveyancing solicitor engaged by the Applicant to act as the conveyancer for the sale of the [Suburb C] property and this Order shall be sufficient authority to the conveyancer for the release of said funds.
The wife did not file any responsive material (see [11]) but she made oral submissions at the hearing on 26 August 2024.
Section 102QB
Section 102QB of the Act is in the following terms:
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.
Section 102Q(1) 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.
“Proceedings” are defined in s 4(1) to mean “a proceeding in a court, whether between parties or not, and includes cross-proceedings or an incidental proceeding in the course of or in connexion with a proceeding”. This definition includes interlocutory applications.
The power to prohibit or restrict vexatious proceedings is well known across many jurisdictions. In Official Trustee in Bankruptcy v Gargan (No 2) [2009] FCA 398, Perram J, in a passage followed many times (see for example Pencious & Searle (2017) FLC 93-805 (“Pencious”) at [75]), set out the following principles to determine when proceedings are vexatious, which I respectfully adopt:
2. A comprehensive explanation of what makes a proceeding vexatious is difficult to proffer for the boundary between the persistent and over-zealous on the one hand, and the vexatious on the other, may at times be indistinct. However, the following principles are, at least, well-established. First, the making of such an order is an extreme remedy depriving its object of recourse to the enforcement of the law which is every citizen’s ordinary right. It is, therefore, not lightly to be made.
3. Secondly, the purpose of the order is not to impose condign punishment for past litigious misdeeds; it serves instead to shield both the public, whose individual members might be molested by vexatious proceedings, and the court itself, whose limited resources needs must be carefully managed and protected from the expense, burden and inconvenience of baseless and repetitious suits.
4. Thirdly, as might naturally be expected, such a severe power is not enlivened by the mere single occurrence of a vexatious claim. To err is human and transient lapses of judgment, even serious ones, may be found in the most reasonable of places. Instead, the power to make the order is conditional upon the litigant having commenced not only a single vexatious proceeding but also upon having commenced similar such proceedings in this court or in other Australian courts.
5. Fourthly, the qualities of vexation … are to be found, … , in the commencement by the litigant of proceedings which lack reasonable grounds and where the litigant’s institution of such proceedings may fairly be said to be both habitual and persistent.
6. Fifthly, whether a proceeding is instituted without reasonable grounds is a different question to, although not wholly disconnected from, the inquiry into a proceeding’s legal merits. The wheat, no doubt, must be separated from the chaff but in this area the question is whether what is before the court contains any wheat at all. Although, often enough, no great guidance is obtained by exchanging one formula of words with another, it will be usually of some assistance, limited perhaps, to ask whether the issues brought to the court for determination are manifestly hopeless or devoid of merit. It is, in that context, important to distinguish the difficult from the ridiculous and the unlikely from the hopeless.
7. Sixthly, although the ways in which unreasonable grounds may manifest themselves are myriad, one form often to be found in the baggage of the vexatious is a failure, often a refusal, to understand the principles of finality of litigation which rescue court and litigant alike from a Samsara of past forensic encounters.
8. Seventhly, it is the related quality of repetition which underpins, in part, a need for the institution of the proceedings to deserve the appellations habitual and persistent. The litigant’s conduct will be habitual where the commencement of proceedings occurs as a matter of course when appropriate conditions for their commencement are present as was explained by Roden J in Attorney-General v Wentworth (1988) 14 NSWLR 481 at 492. That formulation may not wholly explain the litigant who commences proceedings on any occasion and without the presence of any conditions, whether appropriate or otherwise. In such cases, the idea of constant repetition driven by habit and symptomatic of an inability not to engage in the behaviour may be more useful. Persistence, on the other hand, generally suggests stubborn determination but, in the context of the vexatious, carries with it the capacity to endure failure beyond the point at which a rational person would abandon the field.
9. Eighthly, each of these notions — the want of reasonable grounds, habitual institution and persistent institution — are to be gauged objectively. But this does not mean that a litigant’s own protestation as to his or her own mental state is irrelevant; frequently enough, the vexatious are betrayed out of their own mouths. Rather, the need for objective determination protects courts from the vexatious litigant who is genuinely, but misguidedly, persuaded as to the correctness of his or her own conduct.
10. Ninthly, the power to make the order arises when proceedings commenced in the way described are found to exist. But the notion of a proceeding is a broad one including a substantive proceeding directed at the attainment of final relief and collateral applications within such a proceeding; further, it extends outside the proceeding itself and embraces appeals therefrom and applications which, whilst not made in the proceeding, are properly to be seen as collateral thereto — so much flows from the definition of proceeding in s 4 of the Federal Court of Australia Act 1976 (Cth).
11. Tenthly, other proceedings commenced before bodies which are not courts, such as the Administrative Appeals Tribunal, are not directly pertinent to the existence of the power but may nevertheless throw light on the vexatious nature of proceedings before the court; so too, the existence of a body of such administrative litigation may have relevance to the question of whether the court’s power to make the order, once enlivened, should be exercised.
12. Finally, once it is concluded that the court’s power to prevent a litigant from commencing or pursuing proceedings has been enlivened, the considerations germane to the exercise of that power are unconfined. However, the factors which will be relevant are informed by the protective purpose which the order serves. Where a litigant displays insight into their previous litigious history this will, no doubt, be relevant for it will suggest — although not determine — a diminution in the risk posed to the public. On the other hand, the manner in which a litigant conducts herself in her affairs generally is also capable of throwing light on whether the commencement of further vexatious proceedings is likely. Those general affairs include the litigant’s defence to the proceedings by which the order restraining him is sought. Because of the protective nature of the jurisdiction it is also relevant to know the extent of the damage and inconvenience the litigant’s forays into the courts have caused, pecuniary or otherwise.
In Potier v Attorney General (NSW) (2015) 89 NSWLR 284 (also referred to in Pencious at [73]) the NSW Court of Appeal considered the ambit of the adverb “frequently”, holding that it embraces a relatively low threshold (at [114]), and that the quality of the vexatiousness of a proceeding, and the nature of the proceeding itself, inform the assessment of frequency (at [116]). The Court also found that whether the proportion of all proceedings instituted or conducted by a person which are vexatious is high or low does not bear upon the question of frequency (at [119]).
As Gill J pointed out in Rilak & Tsocas [2020] FamCA 49:
30. It may be drawn from here that the protective nature of the provision, and the severe consequences of depriving a person of access to a court remain central matters to be borne in mind in considering the operation of the provision. These require a careful consideration of what is asserted to be vexatious in the light of the inclusive, non-exhaustive statutory definition.
31. What also emerges is that neither the statutory provision at s 102Q(a), (c) or (d), nor the explanation given by Perram J require, as a necessary element, a subjective intention or knowledge that the proceedings
a) Abuse the process of a court or tribunal;
b) Are without reasonable grounds;
c) Are conducted in a way so as to harass or annoy, cause delay or detriment or achieve another wrongful purpose.
32. This is consistent with the protective nature of the power.
There is set out above at [25] a list of the numerous applications brought by the wife.
In his written submissions, the husband pointed to a number of proceedings instituted or conducted by the wife in this Court and the Family Court of Australia (as it then was) that he purports should be considered vexatious in nature. These instances are:
(1)A second Application in a Proceeding filed 9 April 2024 to stay the final orders of 18 January 2024;
(2)An appeal of the final orders of 18 January 2024;
(3)A review of the registrar’s orders on 8 July 2014 to transfer the matter to the Magellan list;
(4)An Application in a Proceeding filed on 16 June 2014 to ‘quash’ Notices of Risk filed by the husband and the ICL;
(5)Further Applications in a Case filed on 30 September 2014, 4 December 2014 and 11 December 2014 to ‘quash’ the Notices of Risk;
(6)An Application in a Case filed 27 November 2015 seeking ‘compensatory damages’, ‘exemplary damages’ and for the judge to take two years leave without pay;
(7)A Contravention Application filed 4 May 2015;
(8)A second Application in a Proceeding filed 22 March 2023 for summary dismissal or permanent stay of the husband’s application for alteration of property interests; and
(9)A Notice of Objection – Subpoena filed 7 May 2014 to the husband’s subpoena to NSW Police, and a Notice of Objection – Subpoena filed 26 May 2014 to the husband’s subpoena to South Australia Police.
The second Application in a Proceeding filed 9 April 2024
I dismissed the wife’s second Application in a Proceeding to stay the final orders of 18 January 2024 in the judgment Morse & Duarte (No 7) delivered on 18 April 2024. I will not repeat the reasons set out in there beyond that I found the wife’s application to constitute an abuse of process to the extent that it ran the same arguments already the subject of earlier determination by the Court, with the remainder brought without reasonable grounds.
The appeal of the final orders of 18 January 2024
The wife’s appeal of the final orders made on 18 January 2024 was dismissed by the Full Court of the Federal Circuit and Family Court of Australia on 7 June 2024 in Duarte & Morse (No 4) (2024) FLC 94-192. It is clear from the judgment of the Full Court that the appeal was misconceived and should not have been brought. The wife was wholly unsuccessful and ordered to pay the husband’s costs.
The review of the registrar’s orders on 8 July 2014
On 13 June 2014 a registrar of the Family Court of Australia ordered that the substantive matter be transferred to the Magellan List. The wife’s review of that order was dismissed in chambers on 16 June 2014.
On 8 July 2014, a second registrar ordered the matter to be transferred to the Magellan List. The wife reviewed the order and was again dismissed on 9 October 2014.
The husband purports the initiation of a second review by the wife is an abuse of process given the dismissal of her earlier review application.
The Application in a Proceeding filed on 16 June 2014
The husband claims the wife’s Application in a Proceeding filed on 16 June 2014 in the Family Court of Australia to ‘quash’ a Notice of Risk filed by himself on 13 June 2014 and a Notice of Risk filed by the ICL on 12 June 2014, was instituted without reasonable grounds and therefore vexatious in nature.
The wife’s application was dismissed on 10 July 2014.
The Further Applications in a Case filed on 30 September 2014, 4 December 2014 and 11 December 2014
After the dismissal of her application above, the wife filed three further Applications in a Case in the Family Court of Australia on 30 September 2014, 4 December 2014 and 11 December 2014 seeking a declaration of ‘invalidity’ with respect to the Notices of Risk filed by the husband and the ICL. The husband purports each application was brought without reasonable grounds.
On 8 December 2014, the applications filed on 30 September 2014 and 4 December 2014 were heard in chambers. Orders were made for consolidation with the substantive application and for the matter to be determined by the trial judge. Notwithstanding this order, the wife filed the 11 December 2014 application and continued to press for the three applications to be heard prior to trial. The husband contends her purpose was to delay final hearing.
A preliminary hearing was listed for 3 March 2016 and did not require the husband’s attendance. The wife refused to participate and the date was vacated.
On 16 May 2017, orders were made that dismissed the wife’s applications. The wife filed a Notice of Appeal on 13 June 2017 and this was dismissed on 15 August 2017.
The Application in a Case filed 27 November 2015
On 27 November 2015 the wife filed an Application in a Case in the Family Court of Australia seeking orders that the Court pay her compensatory damages in the sum of $39,000,000 and exemplary damages in the sum of $39,000,000. The wife sought additional payments of $39,000,000 in compensatory and exemplary damages from the Court if any court officer or ICL communicated with one of the wife’s experts, and orders that a judge of the Court take two years leave without pay and attend pastoral care sessions approved by the wife.
The wife’s application was heard on 11 February 2016 and was unsuccessful. The husband’s attendance was not required at the hearing.
The husband claims the proceeding was vexatious on the basis the application was instituted to harass or annoy and without reasonable grounds as the Court did not have power under the Act to make such orders as sought by the wife.
The Contravention Application filed 4 May 2015
The wife filed an Application on 4 May 2015 in the Family Court of Australia in respect of an alleged contravention by the husband of parenting orders. The wife’s Application was dismissed by Loughnan J on 28 April 2016 in Duarte & Morse [2016] FamCA 381.
In the reasons for judgment, his Honour remarked the wife sought an order restraining the father from expressing concern about risk posed to the children by the wife, however contravention proceedings are substantially for the purpose of enforcement of an order (at [12]–[13]). His Honour expressed there would be "no utility" and "no legitimate forensic purpose" in hearing the mother's Application (at [34]–[35]).
Though it was not an issue pressed by the husband, his Honour made remarks that suggested there was concern about the wife's motivation in bringing the Application and that her intention did not lie in seeking compliance with orders of the Court (at [19]–[22]). When his Honour questioned the wife as to what the benefit of hearing the Application would be "she responded to the effect - bringing the disingenuous position of the father to the Court's notice; revealing him as an abuser of the legal system" (at [34]).
In the current matter, it is the husband's contention the wife instituted the contravention proceedings to harass or annoy the husband, to cause delay, or for another wrongful purpose such as to seek an anticipatory ruling about the husband's assertions of risk by the wife towards the children.
The second Application in a Proceeding filed 22 March 2023
The wife filed a second Application in a Proceeding on 22 March 2023 in this Court seeking that the husband’s fifth Amended Initiating Application be summarily dismissed or permanently stayed. On 12 April 2023 I dismissed the wife’s application in Morse & Duarte (No 4). I will not repeat the reasons set out in there beyond that I found the wife’s application to be without merit and an unnecessary use of judicial time.
The Notices of Objection – Subpoena filed 7 May 2014 and 26 May 2014
The Notices of Objection filed by the wife relate to two subpoenas filed by the husband, one to NSW Police on 27 March 2014, and one to South Australia Police on 26 May 2014. The subpoenas were with respect to material concerning charges and allegations of a sexual nature, including towards children, against Mr Tolman.
The wife’s objections were respectively dismissed by a registrar on 13 May 2014 and 28 May 2014, with leave granted for inspection of documents produced by both subpoenas.
As set out in Morse & Duarte, the wife objected to the South Australia Police subpoena because she was concerned the information would be misused by the husband (at [231], [236]). The husband contends that is an improper ground for objection to material which was highly significant to issues in the parenting proceedings and the wife’s objections should be seen as instituted to cause delay or for wrongful purpose.
Is discretion enlivened
During interim proceedings on 26 August 2024, counsel for the husband submitted that the wife’s overall conduct during proceedings may be taken into consideration under s 102QB(6) of the Act in determination of whether vexatious proceedings have been frequently instituted or conducted.
Attention was also drawn to the wife’s alleged orchestration of delay by failing to attend or leaving court early on the following dates: (with reference to the husband’s affidavit filed 12 July 2024):
(1)20 October 2014;
(2)10 November 2014;
(3)15 September 2015;
(4)19 May 2016;
(5)10 August 2023;
(6)8 December 2023; and
(7)15 January 2024.
A further source of delay was claimed to be the wife’s failure to comply with a range of orders summarised below: (husband’s affidavit filed 12 July 2024, paragraphs 58 to 96)
(1)To file a Further Amended Response in relation to property orders and a Response to an Application in a Case by 12 September 2014;
(2)To file and serve an Amended Response on or before 25 March 2015;
(3)To file a joint balance sheet, parenting questionnaire and financial questionnaire prior to the conciliation conference on 4 May 2015;
(4)To file trial material by 29 January 2016;
(5)To file a Response to the Fourth Amended Application by 17 February 2017 and any affidavit evidence in support by 31 March 2017;
(6)To produce financial disclosure under subpoena by 29 April 2016;
(7)To produce documents under a Notice to Produce served on 16 June 2017;
(8)To instruct a single expert valuer pursuant to orders made on 3 June 2015;
(9)To release interim funds from a controlled monies account in accordance with orders made on 26 May 2016; and
(10)To pay outstanding costs orders as noted above.
Counsel referred to my earlier finding in the remitter judgment that the wife’s failure to discharge certain obligations has been long-standing, at [70]:
I am satisfied the wife consistently, over a number of years since 2015, failed to discharge her obligations of disclosure. She failed to file affidavit material in accordance with the Court’s directions. During the proceedings, she made no less than 20 interim applications or appeals which enjoyed limited success, and failed to appear multiple times.
In response, at the interim hearing the wife initially chose to limit her oral submissions to stating there is no utility in the husband’s application and no order ought to be made. She went on to expand that her conduct had not resulted in actual delay or prejudice to the husband and so could not be considered vexatious in nature. The wife could not clearly recall details regarding instances of her absence in court and generally accounted for any non-compliance with court orders by reference to “highly vulnerable circumstances” she experienced throughout the 10 years of litigation, though no evidence was provided to support this. The wife additionally seemed to claim her non-compliance was helpful to expedite proceedings as the various reports and expert witness requested were, in her view, “unnecessary” to final orders being made.
The wife considered her applications to all be defensive in nature, though she admitted some were misconceived and should be discounted:
HIS HONOUR: [Ms Duarte], the harmful proceedings provisions direct me to take account of the history of the proceedings, whether you’ve taken proceedings frequently, and also the cumulative effect, or potential cumulative effect, of any harm resulting from the proceedings. One thing that the husband points to is the number of applications you’ve brought yourself in the last 10 years in these proceedings.
[THE WIFE]: Well, I acknowledge that there has been a high number, but when we actually look at – okay. There was a few that were just, frankly, off the planet, I think. There was one – they mentioned one in one of the affidavits or one of the submissions where there was a couple of things that were just well and truly misconceived, but they were, like, in 2015; okay? But, you know, other than those couple of obviously misconceived applications – right? Which I think, in all intents and purposes, in 2024, we can discount those couple of obviously misconceived applications; right? But the bulk of these applications that I’m bringing – as I said, they’re all defensive applications; right?
(Transcript, 26 August 2024, p.18 lines 21–35)
It is not necessary to determine whether every proceeding instituted or conducted by the wife is vexatious, rather the central question is whether the wife has frequently instituted vexatious proceedings in Australian courts. In light of the previous detailed discussion, I am satisfied that she has.
It is plain in my view that the wife has shown a proclivity to institute applications which has been habitual and persistent, demonstrating a limited insight into her conduct, a stubborn determination to continue with hopeless applications when beyond the point at which a rational person would have abandoned the field, and an inability to accept the principle of finality. Very few of her applications were instituted on reasonable grounds and her past conduct raises a real risk that she may continue to make specious applications in the future, despite her submission apparently conceding that any further applications would be pointless. The need to protect the public interest by confining the capacity of the wife to institute proceedings is almost self‑evident.
I am further satisfied, for the same reasons, that the wife should be restrained as a vexatious litigant, as the husband proposes.
Section 102QAC
The husband acknowledged that his alternative application, pursuant to s 102QAC would have the same practical result as his application pursuant to s 102QB, that is, restricting the wife’s capacity to institute proceedings. The two sections overlap to that extent. It is probably unnecessary to determine this alternative application for that reason in my view. However, since the husband pressed this application as an alternative basis for relief and against the possibility that I am wrong in my conclusions concerning s 102QB, it is appropriate that I express my conclusions concerning s 102QAC.
Section 102QAC of the Act came into operation on 6 May 2024, providing the power for the Court to make “harmful proceedings orders” by way of application by a party to the proceedings or on the Court’s own motion.
Subsections 102QAC(1), (2) and (3) are relied on by the husband and are in the following terms:
(1)A court exercising jurisdiction in proceedings under this Act may make an order (a harmful proceedings order) prohibiting a party (the first party) to the proceedings from instituting proceedings under this Act against another party to the proceedings without the leave of the court under section 102QAG, if the court is satisfied that there are reasonable grounds to believe that:
(a) the other party would suffer harm if the first party instituted further proceedings against the other party; or
(b) in the case of child-related proceedings (within the meaning of Part VII) – the child who is the subject of the proceedings would suffer harm if the first party instituted further proceedings against the other party.
Note:Proceedings includes cross-proceedings and incidental proceedings (see subsection 4(1)).
(2)For the purposes of subsection (1), harm may include, but is not limited to, the following:
(a) psychological harm or oppression;
(b) major mental distress;
(c) a detrimental effect on the other party’s capacity to care for a child;
(d) financial harm.
(3)In determining whether to make an order under subsection (1), the court may have regard to:
(a) the history of the proceedings under this Act between the first party and the other party; and
(b) whether the first party has frequently instituted or conducted proceedings against the other party in any Australian court or tribunal (including proceedings instituted (or attempted to be instituted) or conducted, and orders made, before the commencement of this section); and
(c) the cumulative effect, or any potential cumulative effect, of any harm resulting from the proceedings referred to in paragraphs (a) and (b).
The Explanatory Memorandum to the Family Law Amendment Bill 2023 (Cth) makes clear the types of harm the Court may have regard to pursuant to s 102QAC(2) are non-exhaustive and the protective intent of the section means there need not be a finding of actual harm suffered before a harmful proceedings order may be made.
322. Subdivision A contains new section 102QAC, which provides the court with power to make a 'harmful proceedings order'. A harmful proceedings order is defined in new subsection 102QAC(1) as an order restraining a party to the proceedings from making any further applications and serving them on the respondent to the proceedings, without first obtaining leave of the court under new section 102QAG. The person being restrained by the order is known as the 'first party'. The intention of this power is to allow the courts to proactively intervene, or intervene upon application by a party to the proceedings, before further applications are served on the other party, and therefore limit the detrimental effect, major mental distress or psychological harm that may result from further applications.
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324. New subsection 102QAC(2) provides examples of what may constitute 'harm'. Harm may include psychological harm or oppression, major mental distress or a detrimental effect on the other party's capacity to care for a child. This list is intended to provide examples of when repetitive and litigious filing by an applicant has or may result in a significant negative impact on the respondent's wellbeing to the point where the making of a harmful proceedings order is appropriate for the protection of the respondent and/or any children involved in the proceedings.
325. The list of examples under subsection 102QAC(2) is non-exhaustive. A non-exhaustive list has been adopted as there are various types of harm that a respondent and/or their children who are the subject of proceedings may experience as a result of a litigant utilising the family court system as a mechanism to instigate further family violence. For this reason, a prescriptive definition of harm has not been included to avoid the risk of narrowing the scope of what constitutes harm.
326. In effect, what constitutes harm will depend on the individual circumstances of each case as determined or assessed by the court, having regard to any or all matters including those in new subsection 102QAC(3).
I have found above that the history of proceedings between the parties shows such proceedings have been frequently and habitually instituted by the wife.
In addition to the matters already considered above, the husband submitted that were the wife to institute further proceedings against him he would suffer financial harm and stress that impacts upon his quality of life. He claimed to have incurred legal fees in the sum of $685,962.71 for the period November 2013 to date as a result of the many “unjustified, repeated and unmeritorious” applications instituted by the wife over some 10 years of litigation. The husband adverted to the legal costs being disproportionate to the complexity of issues in dispute and to the size of the parties’ net property pool being some $2.1 million. The husband contends the incurred legal fees amounts to harm as he has limited capacity to work and has had to go into debt and obtain a loan from his mother which has impacted upon his capacity to financially provide as sole carer of the parties’ children. It was further submitted the financial harm the husband would suffer could not be properly addressed through a costs order given the wife’s persistent non-compliance with prior costs orders (see above).
I have had regard to the cumulative effect, or potential cumulative effect, of any harm to the husband resulting from further proceedings instituted by the wife. Such effect seems to me to be significant.
I find that there are reasonable grounds to believe that the husband would suffer harm if the wife instituted further proceedings against him, within s 102QAC.
CONCLUSION
I will make orders pursuant to s 102QB of the Act as sought by the husband. If it had been necessary I would also make orders pursuant to s 102QAC.
The husband sought costs of his two applications. The wife’s resistance to his applications has been wholly unsuccessful. Since they were heard together, I will make an order for costs in his favour fixed in the sum of $5,000.
I certify that the preceding one hundred and eight (108) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Harper. Associate:
Dated: 20 September 2024
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