P and P

[2004] FCWA 150

JURISDICTION:

FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY LAW ACT 1975

LOCATION: PERTH

CITATION: P and P [2004] FCWA 150

CORAM : PENNY J

HEARD : 27 OCTOBER 2003

REOPENED : 28 JULY 2004

DELIVERED : 18 NOVEMBER 2004

FILE NO/S : PT 5008 of 1997

BETWEEN: P Applicant/husband

AND

P

Respondent /wife

Catchwords:

Children's issues - residence - contact - whether changed circumstances to justify re-opening - finding both applicant and respondent vexatious litigants - both restrained from bringing proceedings without leave of the Court

Property settlement - enforcement - application to set aside order pursuant to s79A of Family Law Act

Legislation:

Family Law Act 1975 - s 79A, s 118

Family Law Rules - 11.04

Category: Not Reportable

Representation:

Counsel:

Applicant : Self Represented Litigant

Respondent : Self Represented Litigant

Solicitors:

Applicant : Self Represented Litigant

Respondent : Self Represented Litigant

Case(s) referred to in judgment(s):

Gilmore and Gilmore (1993) FLC 92-353

Rice and Aspland (1979) FLC 90-275

Vlugg v Poulos (1997) FLC 92-778

Zabaneh and Zabaneh (1986) FLC 91-766

1The dispute between these parties relates to the following issues:

• the residence of the child of their marriage, M, September

1996;

• the contact the non-resident parent should have with him;

•the husband's application to set aside a property settlement made in favour of the wife pursuant to s79A;

• enforcement of that property settlement order;

• the parties' applications that they each be declared vexatious.

2Before dealing with these issues it is important I set out the background of the parties and history of the proceedings in this Court, as it is impossible to deal with these matters in isolation.

3The husband is Hungarian and arrived in Perth in 1980. The wife is also Hungarian. She and the husband commenced corresponding after the husband placed an advertisement in a magazine in Hungary seeking a wife. At that time the husband was still living with his then de facto wife. There is one child of that relationship now aged 16 years. The wife arrived in Perth in June in 1995 and the parties married some three months later. The wife returned to Hungary shortly thereafter for the purpose of obtaining permanent residency in Australia. M was born in September 1996. By Christmas 1996 the marriage was an unhappy one.

4On 23 August 1997 the wife left the matrimonial home taking M with her. The wife did not advise the husband where she was going, nor did she make arrangements for him to have contact with M. On 10 September 1997 the husband filed his first application seeking, amongst other things, that the child reside equal periods of time with each parent. The child was one year old at that time. Thereafter there were a number of applications to the Court relating to residence and contact, and contravention applications all relating to contact the husband should have with M.

5The matter came on for trial in August 1998 for determination as to residence, contact and property settlement. At that time it was the wife's case that the child should reside with her and she should be able to relocate to Hungary with him. It was the husband's case

that the child should reside week about with each party. The judgment of Justice Anderson delivered on 3 September 1998 sets out, in some detail, the history of the court proceedings between the parties to that date on pages 7 to 11 of that judgment. I will not repeat those facts here. In that judgment his Honour found that the wife had no interest in fostering a relationship between the husband and the child. He found that it was unlikely, if allowed to go to Hungary, that she would facilitate contact or convey to the child a favourable view of the husband. He found that the husband embraced certain views not approved of by the majority of the community, he was a nudist and believed sun block screens were harmful. His Honour decided that the wife should not be able to leave Australia for Hungary with M. He decided that the child should reside with the wife, who had been his principal care-giver. The contact ordered by the Court at that time was for the husband to have contact each weekend from 5.00 pm Friday to 5.00 pm Sunday, and then after the child commenced pre-school, each alternate weekend from 5.00 pm Friday to 5.00 pm Sunday. Contact was ordered on other important days during the year.

6In relation to the issue of property settlement his Honour found that the parties had assets of $114,500, including the matrimonial home, owned by the husband, and debts of $80,455, including a mortgage on that property, an overdraft and other debtors, leaving net assets of approximately $34,000. His Honour found the husband was in a better financial position than when the parties were living together, although his earning capacity was inhibited by injuries suffered in 1989. He decided it would not be to the benefit of anyone for the husband to dispose of assets, particularly assets needed in order to meet payments to the wife. The wife was seeking a property settlement in the sum of $10,000, and the Judge decided that this was a reasonable sum. He did not propose the husband pay the amount in one lump sum, but that he pay it to the wife over 20 months by monthly payments of $500.

7The wife appealed the decision of Justice Anderson, particularly in relation to his finding that she could not relocate to Hungary with M. She also sought an order that the sum of $10,000 ordered to be paid by the husband be paid within 28 days rather than in instalments.

8Subsequently, the husband filed contravention applications in relation to the wife not making M available for contact. There were further applications, filed by the husband, when the wife

wished to take M to Hungary for a holiday. The wife's appeal was heard on 22 April 1999 and judgment was delivered later that year.

9The Full Court determined that the wife's appeal should be allowed in relation to the issue of relocation and ordered a re-trial. In relation to the issue of property settlement, the Full Court found that at the time of judgment the husband only had an equity of

$25,000 in the matrimonial home.. He owned this home five years prior to the marriage. They found that the inference to be drawn from the judgment was that the learned trial judge was satisfied that the husband did not have the capacity to pay the amount of the wife's entitlement other than by way of instalments. They found it was in the trial judge's discretion to do so and that he was not in error.

10 The issue of whether the wife could relocate with M was then re-listed for trial. In the meantime there were further difficulties with contact. The wife was found guilty of contravening orders and placed on a bond in the sum of $500 to ensure that contact took place.

11 The matter then came on for hearing before me in 2000 for a re-trial. The matters for determination before me resulting from the orders for a re-trial were:

•whether the parties should have joint responsibility for the care, welfare and development of M,

•the contact the husband should have with M, particularly prior to him attending pre-school; and

•whether the wife should be restrained by injunction from leaving Western Australia with him.

12 In addition, the husband had, on 24 May 2000, filed an application seeking residence of M. The issue of the residence of M had not been remitted by the Full Court for re-trial. After hearing preliminary submissions in relation to the issue of whether there were changed circumstances which would allow a reconsideration of the issue of residence, I decided it was necessary for me to hear the evidence in relation to the issues raised by the husband before I could make a determination.

13 There were a number of issues raised by the husband in relation to M at that trial which were considered and determined by me. These were

• the attempted alienation of M from the husband by the wife;

• the fact that M was suffering from developmental delay;

• the wife's attitude to proper treatment for M' s stuttering;

•M's toileting habits, which were considered to be abnormal and unusual; and

• M' s ability to feed and dress himself.

14 I also dealt with the wife's concerns in relation to the husband, particularly his attitude to sun protection, his alcohol consumption and his nudism, and even the fact that he travelled with a goat in the motor vehicle. The husband, at that time, raised the issue of the wife's mental condition.

15 Dr Watts, who was the Court Appointed Expert, tested both the husband and the wife before the trial to see whether either suffered from a psychiatric or psychological disorder. His results indicated the wife was not suffering from any underlying psychiatric illness or serious disturbance, depressive illness or significant anxiety disorder. In relation to the husband he found he was not suffering from any major psychiatric illness, however, in relation to personality disorders, he found that the husband was extremely logical to the point of excluding emotional process, while the wife was more emotionally based. He did not describe either of them as having a sufficient degree of disturbance to warrant a formal diagnosis of a personality disorder, however, the husband showed a marked tendency towards that diagnosis.

16 At the trial in 2000, the wife's position was that the husband's contact should be severely restricted, particularly until M was toilet trained. On the day of trial the wife agreed with the proposals put forward by the Child Representative, allowing for overnight alternate weekend contact as had taken place in the past.

17 I dealt with each of the concerns raised by the husband in that judgment in some detail. I determined that it was in M' best interests to continue to reside with the wife. I found that as it was obvious the parties were rarely able to agree on anything and in those circumstances the wife should be solely responsible for the long term care, welfare and development of M. I also gave the wife leave to go to Hungary with M for a holiday and for M to have make up contact with the husband upon his return. I then adjourned the application for a period of six months to enable monitoring of the parties' compliance with the orders and to see

whether there was any fine tuning required in relation to the contact orders.

18 The husband then sought leave to appeal out of time the orders made by me. This application was successful, however, the husband did not proceed with the appeal. The husband subsequently filed further Form 49 contravention applications. On

18 February 2002 I made orders finalising the contact issue.

19 In 2002 the wife was found guilty of contravening the contact orders. Numerous other contravention applic ations were filed by the husband during 2002.

20 On 25 October 2002 the wife filed an application seeking final orders "that the Family Court of WA issue the necessary documents to enable my son and me to go for overseas holidays whenever we decide to in the future." In November 2002 the husband filed a Form 3A response to the application seeking that it be dismissed. On 12 February 2003 the wife filed a Form 3 application seeking the following orders:

"1. Mr P provide details of all medical practitioners whom he consulted during past three years.

2. The Hon. Court issues a subpoena to get detailed information about Mr P's state of health and financial situation.

3. The Hon. Cour (sic) reduces contact as per outline in applicant's affidavit."

21 The wife sought interim orders that the contact the child had with the husband cease until final orders were made. The wife amended her application on 4 April 2003 seeking an order that paragraph 10 of the orders made on 22 December 2002 be discharged. This was an order where the wife was to keep the husband informed regarding the residential arrangements made by her for the child. At trial the wife's case was that the husband should only have contact to the child one Sunday a month.

22 In May 2003 the husband filed an amended response seeking that the wife's application be dismissed and that in future any application filed by the wife was to carry a solicitor's certificate of merit. His case at trial was that M should reside with him for a period of two weeks and then have contact with the wife for another period of two weeks and thereafter he reside with each parent each alternate two weeks.

(Page 8 )

23 The husband is now seeking to re-litigate the issue of residence and the wife is seeking to re-litigate the issue of the husband's contact. These matters have already been the subject of a trial in 1998, an appeal to the Full Court in 1999 and another trial in 2000. Before considering these applications I must determine whether there is a substantial change in circumstances to warrant a re-consideration of the issue of the residence and contact M should have with the non-resident parent: Rice and Aspland (1979) FLC

90-275 and Zabaneh and Zabaneh (1986) FLC 91-766.

24 The husband stated at trial the changed circumstances which would warrant a review of the residence for M were:

•his development, which was previously found to be age appropriate, is not. He is in grade 1 at school, and should be in grade 2;

•the wife has contravened the contact orders on a number of occasions;

•the wife does not encourage M' s relationship with the husband.

25 On 28 July 2004 I allowed the husband to adduce further evidence in relation to issues which he stated, were important to his application relating to the health of M and dif ficulties associated with his contact since October 2003. The health issues relate to the husband's claim that M has "deep blue shadows under his eyes". He says this combined with the fact that M is always pale and often ill means that he is "sleep deprived/malnourished/iron deficient/over stressed". He says this is a result of the quality of care he receives from the wife.

26 Mrs G, M' s grade 1 teacher last year, provided a report as to M' progress. In that report she describes him as "a happy and enthusiastic student; reliable and responsible". She makes no mention of any concerns she has in relation to M's physical presentation. If M was sleep deprived, over stressed and malnourished it is highly unlikely that he would be presenting as a happy and enthusiastic student in the classroom.

27 I have no evidence as to the significant of any rings around M' eyes. I am satisfied there is no health issue which is significant enough to warrant the re-opening of the issue of M' residence.

28 In the letter from, M's school teacher, she described his development as follows:

(Page 9 )

"I had the pleasure of teaching M last year when he attended Pre-Primary. At this time M had some difficulty in processing the English language and we worked with him in small groups to assist his development in this area. As he progressed through the year he made many improvements in all areas, including writing. He was also attending speech therapy.

This year he now attends year 1 and with support and encouragement has shown a wonderful maturity towards his work, in particular he has shown much success in his Reading and Writing skills. There is certainly room for further improvement, however, he is working at a good level for year

1 and I am delighted with his achievements considering his

background of various languages.

M will need some support to continue his progress ready for year 2, but I have no doubt he will move on to be successful in all literacy and numeracy skills. He will be monitored again in year 2 to ensure that he continues to achieve. He is willing to put in the extra effort to improve his skills even more and displays persistence in his work. His handwriting is improving and he is beginning to show some good results in mathematics."

29 I am not at all satisfied that M is not developing properly at school. The fact that he is one year behind at school does not indicate he is educationally at risk, and certainly there is no cause for concern indicated in the teacher’s report. I do not believe it is a circumstance which would warrant the re-opening of the issue of residence.

30 The husband also complains about the number of times the wife contravened court orders in relation to contact. Unfortunately, this conduct of the wife is not new. The contraventions have been dealt with by magistrates and the wife has been punished. She is currently on a bond. The wife's position, as I have stated previously, has always been to seek to reduce the contact the husband should have with M. While I do not condone this attitude I am not satisfied, at this stage, that the contraventions of contact orders by the wife are such that they warrant a re-opening of the issue of the residence of M.

31 The husband complains that his relationship with M is not encouraged in the wife's household. Justice Anderson stated as far back as 1998 that the wife would not encourage M's relationship with the husband. Unfortunately, nothing has changed. I am not

(Page 10)

satisfied, given the evidence I heard at the trial in 2000, that the husband would support M's relationship with the wife either. In my view, there is nothing new in this allegation to warrant a finding of changed circumstances.

32 The orders the husband is seeking are not that M reside with him, but effectively that the parties have a shared residency regime, with the husband having control. The orders he seeks are as follows:

"• That the child reside with the husband and he be solely responsible for the day to day and long term care, welfare and development of the child. (my emphasis)

• The wife have contact with the child as follows:

3.a. from 5 pm Friday for 14 days until 5pm the fortnight Friday starting e.g.: the 22nd of august 2003 (this way Mother's Day the child is with the mother and Father's Day the child is with the father) and two weeks later from 5pm Friday for 14 das (sic) to the fortnight Friday again etc. following through in fortnightly change over patterns, so that contact periods can be mapped out well in advance. E.g.: The mother's next contact period after the 22nd of August would commence on the 5th of September. (my emphasis)

3.b. the fortnightly contact/residency pattern modified for the duration of the school holiday only and only within the holiday period, to give the child equal time with his parents durin g the school holidays

3.c. mother's contact suspended (upon one month notice in writing) for the maximum of four days when the child goes on holiday more than 1000kms away from Perth and such contact to be made up during the between school years break

3.d. the parent with which the child commences to spend time with is responsible for collecting the child

3.f. child does not go on contact unless the mother's actual residential address is known to the father and verified

3.f. (sic) any contravention is to be penalised at a rate of multiplying the time lost by three and penalty exercised during school holidays

3.g. the 7 contact weekends with the father, the child has been short changed with in 2002 and 2003 are to be made up

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at times of the father's choice, having to give at least thirty days notice in writing."

33 M now lives with the wife in the south metropolitan area. He attends school in that area. The husband lives in north of the city. The distance to travel between the two residences is at least 45 minutes, more in peak hour. When I asked the husband what he intended to do in relation to M's schooling if he was to spend alternate two weekly periods in the husband's and wife's households, he was very reluctant to answer, stating that this could be sorted out later. When pressed on this issue, his response was that M should spend the two weeks when he resides with the wife at the school and the two weeks when he lives with the husband he should attend a school near his residence. He later suggested that M could travel to the school he attends now each day, but did not say who would be responsible for the travel.

34 I cannot comprehend how the husband could even suggest that M undertake such a routine as to attend a different school each two weeks, particularly when he alleges he is already a year behind in his schooling. To understand the proposal made by the husband the comments made by Dr Watts in his report for the trial in 2000, and set out by me in my judgment at that time, are helpful:

"Dr Watts described the husband as a person 'who has almost no emotional empathy. His stated position is clearly one of logic and he significantly devalues emotional process.' Dr Watts' view was that while the husband could provide for the child's basic needs, he would not be able to meet the child's emotional needs due to his own poor level of ability to relate at an emotional level."

35 The husband's proposal that the child attend two different schools raises questions as to whether he is even able to provide for M's basic needs. He has no emotional empathy with the trauma that this might create for M and the damage it could do to his educational prospects.

36 There are no changed circumstances which would justify a rehearing of the issue of the residence of M, or the issue of who should be responsible for his longterm care, welfare and development. I am satisfied that the proposal of the husband that M reside with him and have two weekly periods of "contact" with the wife, is another example of his controlling behaviour. The husband's proposal allows M to reside with both parents. His suggestion that he be solely responsible for the day to day care,

(Page 12)

welfare and development of M when he would only spend half the time with him reinforces my view. Even if there were circumstances to warrant a re-opening of the issue of M's residence, the husband's application that M reside for two weeks with each parent has no merit.

37 Ever since these parties separated, the wife has wanted to stop the contact the husband has with M, or to substantially reduce it. Her application to reduce the contact to one day per month instead of each alternate weekend is just another example of her desire to limit the time the husband can have M. I am satisfied there is nothing new raised by the wife that would warrant a new hearing in relation to the issue of the contact that M should have with the husband. Even if there were circumstances to warrant a re-opening of the case, there is no merit in the wife's application. Likewise, there is no merit in the wife's application filed 12 February 2003, in relation to the production of medical evidence by the husband. There is no evidence that the husband's health is such that he is unable to care for M. There is no merit in the wife's application that the Court issue a subpoena to obtain information.

Wife's enforcement application and the husband's Section 79A

application

38 The property orders made in favour of the wife were originally made in 1998 and upheld by the Full Court in 1999. The net assets at the date of trial amounted to approximately $34,000. The net equity in the home, which was owned by the husband prior to marriage, was $25,000. In his judgment Justice Anderson stated as follows:

"The husband, as he is no longer supporting the wife, is in a better financial position than he was when they were living together. The husband's earning capacity is inhibited by injuries he suffered in 1989, but he has, none the less, been able to establish himself in self employment. It would not be to the benefit of anyone if the husband disposed of assets, particularly assets that he needs in order to meet payments to the wife. The wife, however, is only asking for $10,000, and in all the circumstances, this appears to me to be a reasonable amount. I do not propose, however, to order that the husband pay the amount in one lump sum, but that he pay it to the wife over 20 months by monthly payments of $500, each payment to be made on the last day of the month, commencing on the

31st December 1998."

(Page 13)

39 The wife filed her enforcement summons on 31 January 2000.

There was at that time $16,000 owing to the wife. On 8 March

2000 Justice Tolcon made orders that the husband was to file a statement of assets and liabilities giving full particulars of real estate and a copy of his motor vehicle licence by 15 March 2000. The husband filed a statement of assets and liabilities indicating that his liabilities equalled his assets. The wife's enforcement summons was then adjourned to the trial date, but not determined by me at that time. The husband filed an application seeking to set aside the orders on the basis of s 79A of the Family Law Act.

40 In dealing with these competing applications I shall deal first with the husband's s 79A application. In the husband's Papers for the Judge he seeks to rely on the facts set out in an affidavit filed by him on 28 October 1999 and on an affidavit filed on 16 April

2003.

41 The matters set out in the husband's affidavit filed 28 October

1999 are matters which might properly be argued in relation to an

appeal against the decision made by Justice Anderson. The husband did not appeal against the order. The wife appealed against the fact that the payment should be in instalments rather than a lump sum. Her appeal was dismissed. The husband is not now able to set the order aside other than pursuant to s 79A of the Family Law Act.

42 S 79A(1) states as follows:

"(1) Where, on application by a person affected by an order made by a court under section 79 in proceedings with respect to the property of the parties to a marriage or either of them, the court is satisfied that:

(a) there has been a miscarriage of justice by reason of fraud, duress, suppression of evidence (including failure to disclose relevant information), the giving of false evidence or any other circumstance;

(b) in the circumstances that have arisen since the order was made it is impracticable for the order to be carried out or impracticable for a part of the order to be carried out;

(c) a person has defaulted in carrying out an obligation imposed on the person by the order and, in the circumstances that have arisen as a result of that default, it is just and equitable to vary the order or

(Page 14)

to set the order aside and make another order in substitution for the order; or

(d) in the circumstances that have arisen since the making of the order, being circumstances of an exceptional nature relating to the care, welfare and development of a child of the marriage, the child or, where the applicant has caring responsibility for the child (as defined in subsection (1AA), the applicant, will suffer hardship if the court does not vary the order or set the order aside and make another order in substitution for the order;

the court may, in its discretion, vary the order or set the order aside and, if it considers appropriate, make another order under section 79 in substitution for the order so set aside."

43 In support of the husband's claim that the judgment be set aside pursuant to s 79A(1)(a), he relies on paragraphs of his affidavit sworn in October 1999. Having read that affidavit, I am not satisfied that there is any evidence which shows there has been a miscarriage of justice by reason of fraud, duress, suppression of evidence or the giving of false evidence, or any other circumstance.

44 In relation to s 79A(1)(b), the husband says it is now impracticable for him to carry out the order because he has become disabled since the order was made and is now in receipt of a Disability Support Pension. At the time that the original property order was made, the husband was suffering from an injury which occurred in 1989. At that time he was self-employed. After orders were made that the husband make monthly payments of $500, he made the following payments :

• in December 1998 one payment of $150 to the wife;

• in December 1999 a further payment of $30; and

•in March and May 2000 he forwarded to the wife $30 in each of those months.

45 In January 2000 the husband entered into a Part IX arrangement. According to the husband each of his personal creditors agreed to forego payment, apart from the wife. Exhibit "H.1" is a letter from the Administrator of the husband's debt agreement, dated 18 October 2003. In that letter she stated that the husband entered into a Part IX debt agreement in 2001, which was accepted by the creditors on 20 February 2001. The husband agreed to pay his creditors at 100% of the debt and up until 18

(Page 15)

October 2003 he had paid his monthly instalments as required. The wife received her first creditor payment by a cheque dated 20

March 2002, which was cashed. The Administrator stated that she sent a second cheque on 23 March 2003. This cheque was returned to her and marked "address unknown". She tried to contact the wife by phone, and this was also unsuccessful. The Administrator stated that the husband still banks into his trust account and she holds those funds on his behalf.

46 The husband was granted a Disability Support Pension on 9

January 2002. Despite being in receipt of a pension, the husband

was able, until at least 18 October 2003, to meet his commitments to pay into the trust account sums for the wife. In addition, the husband agrees that he is committed to pay half the school fees for his child from a previous relationship. He has agreed that he has money to pay for expenses for the children, as long as he controls the items that the money is spent on.

47 While the husband's circumstances have changed since the making of the order in that he is now on a Disability Pension, I am not satisfied that it is impracticable for the order to be carried out and, in fact, until at least 18 October 2003 the husband was meeting his commitments pursuant to the arrangement entered into with the Administrator.

48 The husband says that in relation to paragraph 79A(1)(c) the wife has defaulted in carrying out her obligations in relation to providing M for contact, and in these circumstances it is just and equitable to vary the property order. The husband says the wife's conduct has been such that he has been involved in endless litigation, which has meant that it has affected his ability to work. I am not satisfied that it is all the wife's fault. The husband has filed contravention applications and numerous other applications not relating to contravention. In my view, the husband enjoys the court proceedings. They provide him a forum in which to continue to try and control and manipulate both M and the wife. If the effect of the litigation is that it has affected the husband's ability to work, then it is a consequence brought on mainly by his own behaviour.

49 The property order whereby the husband has to pay the wife

$10,000 in instalments should not be set aside. I am not satisfied that any of the grounds pursuant to s 79A(1) have been made out, nor am I satisfied there has been a miscarriage of justice as a result of the order.

(Page 16)

Enforcement

50 The wife seeks to enforce the order for the payment of

$10,000 initially ordered to be paid in instalments of $500 per month. I have already set out the amounts that have been paid. To some extent, it is the wife's fault that she has not received part of the payments due to her from the Administrator. The husband says that his agreement with the Administrator is that he pays $240 per month in trust to her. According to the Administration the husband was up to date with his payments in October 2003. The Administrator, did not say how much the cheque sent on 23 March

2003 to the wife was for, but it must have been for a sum in excess of $2,000. It was up to the wife to keep the Administrator informed of her current address. If she was not prepared to do this she cannot now come to the court and complain that she has not received the funds which have been paid by the husband to the Administrator.

51 In circumstances where the husband is meeting regular monthly payments as agreed with the Administrator, and the wife has made no effort to attempt to receive those payments from the Administrator, I do not intend to make any orders in relation to enforcing the debt. I will not, however, dismiss the enforcement application. If the husband fails to meet the payment schedule as agreed with the Administrator, then the wife will have liberty to relist her enforcement application seeking payment of the full amount either by way of sale of the husband's home or by some other method.

Vexatious litigant

52 The husband sought an order that "orders to be made that any future application by the mother is to be a valid application only if it contains a solicitor's certificate of merit". The wife sought an order that "the father is a constant litigant as implied by the Honourable (sic) Tolcon in June 2001 and therefore liberty be taken from him to lodge any further application". The parties were self represented when they brought their applications. I cannot make an order in terms of the orders sought by the husband, however, he appears to be seeking an order that the wife be restrained from bringing further applications without some guarantee that there is merit in the application. I shall interpret

(Page 17)

both these applications as being made pursuant to s 118 of the

Family Law Act. That section states as follows:

"(1) The court may, at any stage of proceedings under this Act, if it is satisfied that the proceedings are frivolous or vexatious:

(a) dismiss the proceedings;

(b) make such order as to costs as the court considers just; and

(c) if the court considers appropriate, on the application of a party to the proceedings - order that the person who instituted the proceedings shall not, without leave of a court having jurisdiction under this Act, institute proceedings under this Act of the kind or kinds specified in the order;

and an order made by a court under paragraph (c) has effect notwithstanding any other provision of this Act.

(2) A court may discharge or vary an order made by that court under paragraph (1)(c)."

53 In these proceedings I intend to dismiss the wife's Form 3 application filed 12 February 2003 where she sought the following orders:

"1.	Mr P provides details of all medical practitioners whom he consulted during the past three years.
2.	The Hon. Court issues a subpoena to get detailed information about Mr P's state of health and
financial situation.
3.	The Hon. Cour (sic) reduces contact as per outline
in applicant's affidavit."
54	I intend t 13 May 2003	o dismiss the Form 3A response of the husband filed , save where it refers to the wife's right to file

applications being restricted.

55 If I am wrong in relation to the husband's application, and he is not seeking an order against the wife pursuant to s 118, I can, in any event, restrain her from bringing further applications pursuant to Rule 11.04 of the Family Law Rules, which states as follows:

"11.04(1) If the court is satisfied that an applicant has frequently started a case or appeal that is frivolous, vexatious or an abuse of process, it may:

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(a) dismiss the applicant's application; and

(b) order that the applicant may not, without the court's permission, file or continue an application.

11.04(2) The court may make an order under subrule (1): (a) on its own initiative; or

(b) on the application of:

(i) a party;

(ii) for the Family Court of Australia — a

Registry Manager; or

(iii) for the Family Court of a State — the

Executive Officer.

11.04(3) The court must not make an order under subrule (1) unless it has given the applicant a reasonable opportunity to be heard.

56 Before determining whether the conduct of each of the parties has been such that I should consider limiting their right to bring proceedings, I should consider the history of the applications filed by them. In relation to the wife, these are as follows:

13 July 1999 Form 7 application seeking order that she be permitted to remove M from Australia for up to

10 weeks, the husband do all things enabling her

to obtain a passport for the child.

13 July 1999 Form 8 application seeking similar orders to

Form 7 in the interim.

7 October 1999 Form 8 application asking for a date before a

Duty Judge.

15 December 1999 Form 7 and Form 8 applications both seeking the same orders:

1. To put on hold current contact visits with immediate effect in the best interests of the child until Mr P stablises his position in the society.

2. To order Mr P to provide undeniable evidence about having established stable moral and financial position in the society before the

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Honourable Court, the Child Support Agency and the Taxation Office.

2August 2001 Form 8 application seeking suspension of contact for a period of three days and granting leave for M to be able to attend his grandfather's funeral overseas.

22 April 2002 Form 8 application seeking to set aside orders made four days earlier in relation to contact.

25 October 2002 Form 3 application seeking orders that the Family Court issue the necessary documents to enable the wife and M to go for overseas holidays whenever the wife decides to in the future.

12 February 2003 Form 3 application seeking orders as previously set out in my judgment relating to the provision by the husband of details of medical practitioners he has consulted, for the court to issue a subpoena to get details as to his health and for the court to reduce the contact the husband has with M.

4 April 2003 Form 3 application seeking orders that the court "cancel" the orders made whereby the wife provide the husband with details of her residential address.

19 July 2003 Form 8 application seeking a recovery order.

17 September 2003 Form 3 application seeking an order that the wife and M be able to go overseas for the purpose of holidays at specified times.

In relation to the husband, he has filed the following applications:

10 September 1997 Form 8 application seeking an order that the wife provide the court details with the location of M and until further order the child reside with the parties week about.

10 September 1997 Form 7 application seeking that the child reside equal periods with each of the parties.

10 December 1997 Form 8 application seeks orders in similar terms to the previous Form 8.

28 October 1999 Form 7 application seeking orders as follows:

"1. To wipe out the debt created by order of the Hon Justice Anderson, delivered

3/12/98.

2. To make orders to wipe out existing and future child support liabilities for a minimum of three years.

3. Changing existing orders to have the mother pick up the child after contact visits.

4. Make an order to add the day(s) making up long weekend to contact visit time.

22 February 2000 Form 8 application seeking orders to set aside .4 of "Mr Anderson's" (sic) made 3 December

1998. This order related to the order for property

settlement.

17 March 2000 Form 8 application seeking leave to proceed with an application under s 79A.

2November 2001 Form 8 application seeking an order that Centrelink release the respondent's address to the applicant.

22 August 2000 Form 8 application seeking an increase in school holiday contact by a period of three days for each of the October, July and April school holidays.

16 February 2001 Form 8 application seeking an order that an appeal out of time be allowed and leave to appeal be granted.

8 April 2002 Form 8 application seeking a variation of contact orders.

29 May 2002 Form 8 application seeking orders to reinstate a contact pattern so that the husband could have contact to M for the July term break.

57 In addition to each of the applications filed by the parties, they have responded to applications filed by the other party and as a result they have filed numerous Forms 7A, 8A and 3As. There has

rarely been a time in the last seven years when there has not been an application before the Court.

58 The parties have attended in this court since the instigation of proceedings in 1997 on more than 80 occasions, almost all of these relating to some dispute in relation to the contact or residence of M, or in relation to contravention applications, mostly relating to the fact that M was not made available for contact.

59 Unfortunately for M, he is living in a war zone. Neither of his parents have his best interests at heart, although both profess to. The husband is determined to have M reside with him on terms he thinks are appropriate, that is part time. The wife is determined that the husband's contact should be reduced to a minimum. They are both prepared to use the Court system to attempt to wear the other party down and get their way.

60 In dealing with an application under this s 118 there must be firstly a finding that proceedings are frivolous or vexatious and should be dismissed. I need to consider, therefore, whether the proceedings currently brought by the parties are vexatious.

61 In Gilmore and Gilmore (1993) FLC 92-353 the Full Court defined the term "vexatious", in the context of the issue of the appropriate forum for an application, as meaning "productive of serious and unjustified trouble and harassment". In the Vexatious Proceedings Restriction Act 2002, vexatious proceedings are defined as:

"(a) Proceedings which are an abuse of the process of the court or a tribunal;

(b) Proceedings instituted to harass or annoy or cause delay or detriment or for any other wrongful purpose;

(c) Proceedings instituted or pursued without reasonable ground; or

(d) Proceedings conducted in a manner so as to harass or annoy, cause delay or detriment, or achieve any other wrongful purpose."

62 While these applications have not been brought pursuant to the Vexatious Proceedings Restriction Act 2002, I am satisfied that in the context of these proceedings the definition under that section is an appropriate one.

63 In my view, the wife's application seeking to reduce the husband's contact to one day per month was instituted without

reasonable grounds and, in my opinion, was brought so as to harass and annoy the husband.

64 In relation to the husband's application and response whereby he sought to seek residence of M on the basis that he should move residence each fortnight, it was brought without reasonable grounds and for the purpose of harassing and annoying the wife. Having determined that the applications of both the parties were vexations, I need to consider whether the conduct of the parties has been such that I should inhibit them from instituting further proceedings without leave of the Court.

65 The power to restrain the right of a party to commence proceedings should "be exercised with caution and reserved for the clearest of cases": Vlugg v Poulos (1997) FLC 92-778. This power would normally only be exercised where a person had frequently and without reasonable grounds instituted vexatious legal proceedings.

66 In relation to the wife's application, there was no merit in her Form 7 and 8 applications filed in December 1999 seeking to "put on hold current contact visits", nor her Form 3 application filed 12

February 2003, nor in relation to the wife's responses where she sought to restrict the contact the husband has with M. I have no doubt that unless restricted the parties will continue to bring applications, in the husband's case in relation to the residence of M and in relation to his development and medical treatment. In relation to the wife, I have no doubt she will continue to bring applications which will seek to limit the husband's contact with the M.

67 Apart from taking into account the harassing nature of the proceedings made by the parties against each other, I must also consider whether the applications have amounted to an abuse of process of the Court. As I have stated previously, these parties have had more than 80 attendances in Court relating mainly to issues surrounding M. Unrestricted, this Court is merely providing a venue for these parties to publicly exhibit their loathing for each other. I am satisfied that the arrangements in place at the present time for M are perfectly acceptable and there is unlikely to be any change in those in the foreseeable future. In my view, there should be an order restraining both parties from bringing further proceedings in this Court without leave of the Court, except in relation to contravention applications or an appeal from this decision.

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68 The wife also seeks to be relieved of the obligation to provide the husband with the details of residential address for herself and M as ordered in 2000. I am satisfied that the arrangements for M are appropriate. The wife has now re-partnered and has a child by that relationship. She wishes to protect her privacy. I can see no reason why the husband needs to know where M is living other than to exercise some control. The wife should have the comfort of knowing the husband is not likely to attend at her premises. I am satisfied that paragraph 10 of the orders made on 22 December

2002 should be discharged.

69 The wife also has before the Court an application that she be able to leave Australia and take M on a holiday to Hungary. The wife has, on a number of occasions, taken M away on a holiday to Hungary. He has always been returned. I am satisfied that it is in M's best interests that he be able to maintain his contacts with the wife's family in Hungary. In my view, the wife should have leave to take M overseas each two years for no more than four weeks, and the husband should have make-up contact for the contact periods he missed over that period.

70 Because the parties find it impossible to negotiate between themselves in relation to any variations of contact or the terms of make-up contact, I will order that the contact the husband has with M will be supervised by the Family Court Mediation and Counselling Service for a period of 12 months. This supervision is to be reportable.

Proposed orders

1Paragraph 10 of the orders made on 22 December 2002 be and is hereby discharged.

2The wife have leave to take M overseas every two years for no more than four weeks, and the husband is to have make- up contact for the contact periods missed over that period.

3As far as practicable, contact shall be supervised for a period of 12 months by a family and child counsellor or welfare officer to be nominated by the Director of Family Court Mediation and Counselling Service.

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4The family and child counsellor or welfare officer appointed to supervise contact have liberty to report to the judicial officer making this order in relation to matters concerning the supervision of contact.

5In the event that the parties agree to a variation of the terms of the order for contact, they shall be at liberty to apply to the Court to seek such variation by the filing of a Minute of Consent Orders signed by each of them.

6All outstanding applications filed by the husband, save for any application for contravention, will be dismissed.

7All outstanding applications filed by the wife will be dismissed.

8Save for any contravention applications, neither the husband nor wife shall issue proceedings in this Court without prior leave of a Judge of the Court.

I certify that the preceding [70] paragraphs are a true copy of the reasons for

judgment delivered by this Honourable Court

Associate