Peters and Ortona

[2016] FamCA 97

FAMILY COURT OF AUSTRALIA

PETERS & ORTONA [2016] FamCA 97

FAMILY LAW – PRACTICE AND PROCEDURE – Leave to file – application by the mother for leave to file further applications – mother previously declared a vexatious litigant pursuant to s 102QD of the Family Law Act 1975 (Cth) – leave granted to file application to reinstate suspended parenting orders – orders made dismissing applications for leave to file applications seeking to enforce property orders and for contravention

Family Law Act 1975 (Cth)

APPLICANT: Ms Peters

RESPONDENT: Mr Ortona

INDEPENDENT CHILDREN’S LAWYER: Trapski Family Law

FILE NUMBER: MLC 8590 of 2012

DATE DELIVERED: 23 February 2016

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Justice Macmillan

HEARING DATE: 2 February 2016 and 12 February 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: In Person

SOLICITOR FOR THE APPLICANT: N/A

COUNSEL FOR THE RESPONDENT: In Person

SOLICITOR FOR THE RESPONDENT: N/A

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Trapski

SOLICITOR FOR THE RESPONDENT: Trapski Family Law

Orders

IT IS ORDERED THAT

1. The mother be granted leave pursuant s 102QG of the Family Law Act 1975 (Cth) to institute proceedings seeking the reinstatement of paragraphs 4(a) and (g) of the final orders made by Thornton J on 26 February 2015 and that she be permitted to rely upon paragraph 1 of her Application in a Case filed 27 January 2016 for that purpose.

2. By 4.00 pm on 7 March 2016 the father file and serve upon all other parties a response and any affidavits in reply to the mother’s affidavit filed 27 January 2016.

3. By 4.00 pm on 14 March 2016 the mother file and serve any affidavit in reply to the affidavits of the father filed pursuant to paragraph 2 herein.

4. By 4.00 pm on 14 March 2016 the Independent Children’s Lawyer file and serve any affidavit to be relied upon.

5. No party file any further material other than as provided by these orders without leave of the Court.

6. Paragraph 1 of the mother’s Application in a Case filed 27 January 2016 be listed for hearing in the Senior Registrar’s  Duty List at 10.00 am on 17 March 2016.

7. The mother’s Application in a Case filed 27 January 2016 and her Application in a Case filed 18 December 2016 be otherwise dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Ortona & Peters has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC8590/2012

Ms Peters

Applicant

And

Mr Ortona

Respondent

Independent Children’s Lawyer

REASONS FOR JUDGMENT

1. This matter was listed for hearing before me in the Judicial Duty List on 2 February 2016. The applications listed before me that day were the mother’s:

   a)Application in a Case filed 18 December 2015 in which she sought inter alia leave to enforce the orders for property settlement made 26 February 2015 as a matter of urgency and various orders with respect to the provision of financial information by the father;

   b)Application in a Case filed 27 January 2016 in which she sought leave to file an application for the reinstatement of her time with the children; and

   c)unfiled Application for Contravention, which was marked Exhibit M1 on 2 February 2016.

2. By way of background the father in this case is 43 years of age and the mother is 46 years of age. The parties commenced cohabitation in September 2002 separating on a final basis in August 2012. There are two children of the marriage B who is 12 years of age and C who is 11 years of age.

3. On 26 February 2015 Thornton J made final orders which provided inter alia that the father have sole parental responsibility with respect to all major long term issues for the children requiring him to use his best endeavours to advise the mother in writing (via letter or communication book) of any decision he intended to make and seeking her response thereto and that the children live with the father. Her Honour made further orders with respect to the time the children were to spend with the mother, relevantly for the purposes of the applications before me, orders that the children spend time with the mother during school terms each alternate weekend from the conclusion of school on Friday until the commencement 26 February 2015 of school on Monday, on each of the children’s birthdays from the conclusion of school until 6.30 pm when it falls on a school day and from 10.00 am until 3.00 pm when it falls on a weekend and that the children communicate with the mother between 6.00 pm and 6.30 pm each Wednesday with the father to initiate the call to the mother’s mobile telephone number.

4. Thornton J also made final orders for property settlement on 26 February 2015 which provided inter alia for the sale of the former matrimonial home in which the father was living with the children and two garages located nearby and after payment of various liabilities the division of the net proceeds of sale of the properties as to 55 per centum to the mother and the balance to the father.  

5. The mother has filed a Notice of Appeal on 26 March 2015 from Thornton J’s orders which is awaiting hearing.  

6. On 28 September 2015 the husband filed an application for a recovery order seeking the return of the children by the mother. It was his case that the children had been due to be returned to his care on 26 September 2015 but that the mother had refused to return them. The matter was listed before me on an urgent basis that day.  It was not the first time that the father had applied for a recovery order for the children’s return by the mother. The mother who appeared by telephone that day did not dispute that she had not returned the children but her failure to return the children was based upon what she alleged was the abuse of the children by the father. After the mother agreed to deliver the children to Suburb M Police Station later that day I made orders for the issue of a recovery order, staying that order to allow the mother to voluntarily return the children to the father’s care as she had indicated she was prepared to do. In circumstances where the matter had been listed for further hearing in the Judicial Duty List on 6 October 2015 I suspended the mother’s alternate weekend time, her time on the children’s birthdays and the Wednesday evening telephone calls until further order on the basis of my concerns as to the children’s exposure to the ongoing litigation and conflict and on the basis that the matter could be addressed on 6 October 2015. 

7. On 6 October 2015 Bennett J adjourned the matter for hearing before her for case management purposes to 28 October 2015 noting that on that date the parties would be given the opportunity to be heard on the question of whether a vexatious proceedings order should be made against either or both of them. The orders provided that the substantive proceedings which included the mother’s Application for Contravention filed 12 August 2015, her Application in a Case filed 16 September 2015, the father’s Application in a Case and his Application for Contravention filed 28 September 2015, the mother’s Initiating Application filed 28 September 2015 and any application by the mother to discharge paragraph 5 of the orders made 28 September 2015 suspending her time with the children were to be set down for determination on a date to be fixed. 

8. On 21 October 2015 Benjamin J made orders in the mother’s absence dismissing the mother’s Application for Contravention filed 12 August 2015, her Application in a Case filed 16 September 2015, her Initiating Application filed 28 September 2015 and any application by the mother to discharge paragraph 5 of the orders made 28 September 2015.

9. On 25 October 2015 the mother filed an Application in a Case in which she sought orders for the relisting of the Application for Contravention filed 12 August 2015 and her Initiating Application filed 28 September 2015 as a matter of urgency, these applications having been dismissed in her absence by Benjamin J on 21 October 2015.

10. On 28 October 2015 Bennett J heard the issue of whether the court should make a vexatious proceedings order, made orders appointing an Independent Children’s Lawyer and otherwise reserved her judgment. Her Honour also put the parties on notice that any vexatious proceedings order might be made retrospectively and that on that basis any application filed by the parties between the hearing and when she delivered judgment might require leave.  On 6 November 2015 Bennett J published her reasons and made a vexatious proceedings order against the mother retrospective to the date of the hearing on 28 October 2015 in the following terms:

    (8)       By way of vexatious proceedings order:

    (a)With effect from 28 October 2015, the mother is prohibited from instituting proceedings under the Family Law Act 1975 (Cth) (“the Act”) against or in relation to the father or the children without first having been granted leave to commence that proceeding pursuant to s 102QD of the Act,

    (b)This vexatious proceedings order does not apply to:

    i.any costs application arising from these orders, filed within the time prescribed under the Family Law Rules 2004,

    ii.any appeal from these orders, provided such appeal is filed within the time prescribed under the Family Law Rules 2004 or such other time as is permitted by Order of the Full Court.

    Her Honour also reinstated the mother’s Application for Contravention filed 12 August 2015, her Application in a Case filed16 September 2015 and her Initiating Application filed 28 September 2015. The father was also granted leave to reinstate his Application for Contravention and his Application in a Case both filed 28 September 2015 upon notice to the mother and the case co-ordinator. 

11. In her reasons Bennett J makes clear her intention to reinstate the parties to the position they were in prior to their various applications being dismissed by Benjamin J on 21 October 2015 however there was no reference in her Honour’s orders to any application the mother might file seeking to reinstate her time with the children. Although it appears that the mother may have attempted to file an application seeking inter alia to reinstate her time with the children there is no such application on file.

12. On 18 December 2015 Bennett J heard the mother’s various contravention applications ultimately dismissing each of those applications. Her Honour also reinstated and varied paragraph 4(h) of the orders made by Thornton J on 26 February 2015 for telephone time between the children and the mother making orders which provided for the father to initiate a call to a telephone number provided by a family violence worker assisting the mother. There have been significant difficulties with the telephone time based upon that order in circumstances where it appeared the mother did not have a mobile phone. I was informed by the ICL, which was confirmed by both the father and the mother, that the mother has now provided the father with a mobile telephone number and that the children have telephoned the mother on one occasion.  

Legal Principles

1. Section 102QE of the Family Law Act 1975 (“the Act”) provides that a party subject to a vexatious proceedings order may apply to the Court for leave to institute proceedings the subject of that order. The applicant must file an affidavit listing all the occasions on which the applicant has applied for leave pursuant to this section and list all of the other proceedings the applicant has instituted in any Australian court or tribunal including proceedings instituted before the commencement of this section of the Act and disclosing all relevant facts about the application whether supporting or adverse to the application.

2. The application must not be served upon any person unless the Court makes an order for service (s 102QE(4) of the Act).

3. Section 102QF of the Act provides that the Court may make an order dismissing the application for leave to institute proceedings if it considers that the affidavit filed by the party seeking that leave does not substantially comply with s 102QE(3) of the Act. An order dismissing the application can be made without their being an oral hearing either with or without the applicants consent and the Court may make an order doing so in Chambers.

4. Before the Court grants leave to the applicant to institute proceedings it must order that the applicant serve a copy of the application and affidavit upon the person against whom the proceedings are proposed to be instituted and any other person specified in the order together with notice they are entitled to be heard on the application and give those persons an opportunity to be heard at the hearing of the application (s 102QG of the Act).

5. The Court may make an order granting leave subject to conditions it considers are appropriate. However the Court may only grant leave if it is satisfied the proceedings are not vexatious.

Parenting Proceedings

1. On 2 February 2016 in circumstances where I had formed a preliminary view that there might be grounds for granting the mother leave to institute at least some of those proceedings for which she sought leave I made orders requiring her to serve both of her applications in a case and the affidavits in support of those applications and the proposed Contravention Application marked Exhibit M1 upon the father. In an excess of caution I also requested that the Independent Children’s Lawyer who appeared at the hearing before me on forward a copy of the same documents to the father.  It appears that the mother did not serve those documents upon the father but the Independent Children’s Lawyer did. In any event the father appeared at the further hearing before me on 12 February 2016.

2. There are two aspects to the mother’s application with respect to parenting issues. The first is the question of whether the mother’s time with the children pursuant to paragraphs 4(a) and (g) of the final orders made 26 February 2015 (“the final orders”) should be reinstated. The second is whether the mother should be given leave to file the further Application for Contravention .

3. It is the mother’s case that she has now not seen the two children who had previously been spending time with her on a regular basis since paragraphs 4(a), (g) and (h) of the final orders were suspended on 28 September 2015. As previously referred to on 17 December 2015 Bennett J made orders discharging paragraph 4(h) of the final orders and made orders in lieu of same providing for the mother to have telephone communication with the children.  

4. It is clear from my reasons delivered on 28 September 2015, when I suspended the children’s time with the mother that I envisaged that this issue would be addressed at the further hearing of the matter on 6 October 2015. It is also clear from the orders made by both Bennett J on 6 October 2015 and Benjamin J on 21 October 2015 that it was anticipated that the mother would make an application to reinstate the orders. It now appears that she may have attempted to do so. The Independent Children’s Lawyer submitted that in circumstances where the children had been spending regular time with the mother it was in their best interests for the mother to be granted leave to file her application seeking to reinstate her time with the children.

5. Although the father submitted that circumstances have changed and he will be opposing the reinstatement of the children’s time with the mother he did not oppose the mother being granted leave to make that application.

6. Although the mother’s affidavit does not set out in precise detail all other proceedings she has instituted in any Australian court in circumstances where the mother is appearing in person and the history of this matter is well documented, I am satisfied that at least with respect to the application seeking to reinstate her time with the children her affidavit is sufficient.

7. I am satisfied that the application the mother proposes seeking to reinstate her time with the children pursuant to the final orders is not a vexatious proceeding. In all of the circumstances I am satisfied that the mother should be granted leave to file an application in the terms of paragraph 1 of her Application in a Case filed 27 January 2016. Although that Application in a Case is strictly speaking her application for leave, to avoid unnecessary delay I propose to treat that application as the mothers’ application for the substantive relief.   

8. The position with respect to the mother’s proposed Application for Contravention marked Exhibit M1 is not quite as clear. Although the mother in her affidavit does not in my view adequately identify the alleged breaches of the orders in relation to which she seeks to file that application she did tender a draft Application for Contravention which does at least to some extent do so.

9. The father opposed the mother being granted leave to file her application for contravention on the basis that these are matters that have already been dealt with. The mother submits that that is not the case. It is certainly the case that the contraventions dealt with by Bennett J on 18 December 2015 included alleged breaches of the orders with respect to telephone time between the mother and the children and in circumstances where the alleged contravention in the proposed Application for Contravention are said to be that  the father “Failed to facilitate any reasonable request by the children to talk to the other parent by telephone” and the time period referred to is 2015/2016 arguably some of these contraventions are a repeat of those already dealt with by her Honour. Whether they have or have not been dealt with they are matters which all occurred prior to the hearing of her applications for contravention by Bennett J. 

10. In my view the mother’s Affidavit filed 27 January 2016 not only does not list all of the proceedings instituted by the mother it also does not adequately particularise the alleged contraventions. It is also the case that some of the documents the mother has annexed to her affidavit in support of her application tend to contradict her assertions with respect to those contraventions.  An application for contravention is a serious matter and in this case there have been many such applications. Significantly it was the mother’s many unsuccessful applications for contraventions which were the basis for the vexatious proceedings order made by Bennett J on 6 November 2015.  Although I am satisfied that the mother should be granted leave to seek the reinstatement of her time with the children I am not satisfied that I should grant her leave to file her Application for Contravention.

Property

1. In her Application in a Case filed 18 December 2015 the mother seeks to institute proceedings for the enforcement of the final orders for property settlement made by Thornton J on 26 February 2015.  The mother deposes in her Affidavit filed on 18 December 2015 that the two properties, which were to have been sold, have been sold and at least one has settled, but that she has not received her share of the proceeds. I formed a preliminary view prior to hearing the father that on the basis that it was the case the mother should not be precluded from enforcing the final orders made by Thornton J.

2. However having heard from the father I am not satisfied that there is any basis for the mother’s proposed application for enforcement. It is the father’s case that the sale of the smaller of the two properties settled in December 2015 and that the conveyancing firm handling the matter have been attempting to contact the mother in order to pay her share of the proceeds to her. He says that the second and larger of the two properties only settled this week and that as yet he has not received his share of the net proceeds of sale. Although the property is registered in the father’s name alone the final orders made by Thornton J provided that each of the father and mother do all acts and things necessary to place the properties on the market for sale. Notwithstanding that the final orders refer to both parties conducting the sale and effecting a distribution of the proceeds in circumstances where that was strictly speaking not really necessary, the father indicated to the Court that although it was his case that the final orders did not require him to do so he had instructed the conveyancing firm to provide copies of the contract, settlement statements and other documents related to the sale to the mother but that they had been unable to contact her in order to do so. The father provided the Court with the name, address and telephone number of the person handling the conveyance.

1. The mother by way of response alleged that she had both telephoned and emailed the conveyancing firm but that she had not received any reply. The mother tendered a number of emails which she said supported her assertion and were marked Exhibit M2. There was not one email in that bundle which the mother had sent to the conveyancing firm. 

2. Although the mother submitted that I should grant her leave to file an application just in case she did not receive copies of the documents evidencing the sale and settlement of the two properties or receive her entitlements from the proceeds of sale I am not satisfied that there appears to be any basis for her proposed application or that in circumstances where there is a vexatious proceedings order that it would be appropriate to grant leave in anticipation of a failure on the father’s part to comply.

3. The mother’s  Application in a Case for leave to institute proceedings filed 18 December 2015 set out a list of documents she said the father should be required to produce. Ultimately she conceded that those documents should be limited to copies of all executed contracts of sale for the properties sold pursuant to Thornton J’s final orders, copies of all commissions paid, advertising solicitor and/or conveyancing fees and settlement statements and copies of any notices issued by council or building authority affecting the matrimonial properties, including the City of DD Building Notice regarding the property at F Street, Suburb D in the State of Victoria.

4. The father having indicated that he has given instructions to the conveyancing firm handling the matter to provide copies of the documentation in relation to the sale of the two properties, I do not propose to give the mother leave to issue an application seeking production of those documents in circumstances where there is no evidence that the mother has to date made any attempt to obtain that information from the conveyancing firm let alone been refused.

5. The father opposed the mother being granted leave to institute proceedings with respect to the provision of any building notice issued by council or any building authority. He submitted that these were matters which were dealt with at the hearing before Thornton J. The mother’s case is that she should be granted leave because she has been told that she could be liable in the event of their being issues with the works carried out by the father to the property. The mother does not explain why or how that might be in circumstances where the property in question was registered in the sole name of the father. In any event Thornton J has heard and determined the parties competing applications for property settlement and the property in question has been sold. I am not satisfied, particularly in circumstances where the mother’s Affidavit filed 18 December 2015 includes no evidence in support of the proposed application for the production of documents, that I should grant the mother leave to make such an application. I am not satisfied that the proposed application is not a vexatious proceeding.

Conclusion

1. In all of the circumstances I propose to grant leave to the mother to institute an application in a case seeking the reinstatement of paragraphs 4(a) and (g) of the final orders made by Thornton J on 26 February 2015 and that she be permitted to rely upon paragraph 1 of her Application in a Case filed 27 January 2016 for that purpose. The husband sought at least two weeks to file answering material and I propose to allow him that time. The mother will also need the opportunity to reply to the father’s material and the Independent Children’s Lawyer may need time to gather any evidence upon which she proposes to rely. In all of the circumstances I propose to list the matter for hearing in the Senior Registrar’s  Duty List as soon as possible after the time provided for the mother to file any affidavit in reply to the affidavit relied upon by the father.

2. I propose to otherwise dismiss the mother’s Application in a Case file 27 January 2016 and her Application in a Case filed 18 December 2015.

I certify that the preceding thirty six (36) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Macmillan delivered on 23 February 2016.

Associate: 

Date:  23 February 2016