Peters and Ortona (No 3)

[2015] FamCA 960

FAMILY COURT OF AUSTRALIA

PETERS & ORTONA (NO 3) [2015] FamCA 960

FAMILY LAW – PRACTICE & PROCEDURE — Applicant subject to s 102QB Vexatious Proceeding Order — 118 frivolous or vexatious proceedings — abuse of process — frequency of application — reinstatement of earlier applications which are not impacted by section 102QB order.

APPLICANT: Ms Peters

RESPONDENT: Mr Ortona

FILE NUMBER: MLC 8590 of 2012

DATE DELIVERED: 6 November 2015

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 28 October 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: In person

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT: In person

SOLICITOR FOR THE RESPONDENT:

Orders

1. The email correspondence from the mother to the Case Coordinator Team dated “15/10/2015 11.03 AM” be marked Exhibit “C” and remain on the Court file.

2. The email from the Associate to the Hon. Justice Bennett to the mother and the father dated “13/10/2015 07.40 AM” be marked Exhibit “D” and remain on the Court file.

3. 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.

4. That the following applications of the mother be and are hereby reinstated and will be set down for hearing on a date to be fixed by me (but not necessarily before me) and such fixture be notified to each parent and the Independent Children’s Lawyer by email:

   a)the contravention application filed on 12 August 2015;

   b)the application in a case filed 16 September 2015;

   c)the Initiating application filed 27 September 2015.

5. Upon the father providing notice in writing, by email to the mother and to the case co-ordinator, that he wishes to reinstate the following application, these applications be reinstated:

   a)the contravention application filed 28 September 2015;

   b)the application in a case filed on 28 September 2015.

   IT IS NOTED the particular consequences arising from a vexatious proceedings order are set out in s 102QD of the Act, which provides:

   (1)If a person is subject to a vexatious proceedings order prohibiting the person from instituting proceedings, or proceedings of a particular type, under this Act in a court having jurisdiction under this Act:

   (a)that person must not institute proceedings, or proceedings of that type, in the court without the leave of the court under section 102QG; and

   (b)another person must not, acting in concert with the person, institute proceedings, or proceedings of that type, in the court without the leave of the court under section 102QG.

   (2)If proceedings are instituted in contravention of subsection (1), the proceedings are stayed.

   IT IS NOTED that if the mother or any other person acting in concert with her wishes to apply for leave to institute a proceeding or proceedings covered by this vexatious proceedings order, the mother or such other person will be obliged to comply with s 102QE of the Act which provides:

   Section 102QE(2) The applicant may apply to the court for leave to institute proceedings that are subject to the order.

   Section 102QE (3) The applicant must file an affidavit with the application that:

   (a)lists all the occasions on which the applicant has applied for leave under this section; and

   (b)lists all other proceedings the applicant has instituted in any Australian court or tribunal, including proceedings instituted before the commencement of this section; and

   (c)discloses all relevant facts about the application, whether supporting or adverse to the application, that are known to the applicant.

   Section 102QE (4) The applicant must not serve a copy of the application or affidavit on a person unless an order is made under paragraph 102QG(1)(a). If the order is made, the applicant must serve the copy in accordance with the order.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Peters & Ortona (No 3) 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: MLC 8590 of 2012

Ms Peters

Applicant

And

Mr Ortona

Respondent

REASONS FOR JUDGMENT

Introduction

1. This matter comes before me at Case Management Judge and with me having given notice to the parties on 6 October 2015 that:

   … at the case management hearing before me on 28 October the parties will be given an opportunity to be heard on whether a vexatious proceedings order should be made against either or both of them pursuant to s102QB of the Family Law Act 1975 and each should ensure that on that day he/she is in a position to make any submissions and adduce any evidence upon which he/she wishes to rely.

2. The notification followed on an apparent high number of applications being filed in this matter since final parenting orders were pronounced by Justice Thornton on 26 February 2015. Since that time, the mother has filed eight contravention applications, one application seeking to have the father dealt with for contempt, one application seeking to have the Independent Children’s Lawyer dealt with for contempt, four applications in a case and one application initiating proceedings. By comparison, the father has filed three applications in a case and one contravention application.

3. The effect of Thornton J’s decision in February 2015 was to bring to an end a week about parenting regime in relation to B who is now 12 years old and C who is 10 years old and to place them in the primary care of the father. The final parenting order is under appeal, the mother having filed a Notice of Appeal on 26 March 2015. According to the mother it is unlikely that the appeal will be heard before mid-2016 and it is not certain when, thereafter, the Full Court will hand down its decision. On 28 August 2015 the mother filed an application in an appeal seeking an extension of time in some respect.

4. On 28 September 2015, Justice Macmillan issued a recovery order on the father’s application and to secure the return of the children to the father. Pursuant to that order the mother is restrained from having further communication or time with the children (or either of them) pending further order of the Court. The mother last saw the children on 28 September 2015. The application in a case filed by the mother on 25 October 2015 seeks that her applications for contraventions be relisted to be reheard.

5. Neither the father nor the mother (against whom consideration of the appropriateness the vexatious order is directed) were legally represented before me on 28 October 2015. I provided each with an opportunity to be being heard and each of them participated in the proceedings.

6. The mother opposed a vexatious proceedings order being made against her.

7. The father supported a vexatious proceedings order against the mother.

8. These are the reasons for my decision to make a vexatious proceedings order against the mother and to allow the mother (and the father) to reinstate proceedings which were dismissed on 21 October 2015.

Background

1. As indicated, final parenting and property orders were pronounced on 26 February 2015.

2. In summary, the final parenting order provided, inter alia, for the father to have sole parental responsibility in respect to all major long term issues for the children; that the mother to spend time and communicate with the children each alternate weekend during school term, at determined times during the school holidays, Christmas Day, Mother’s Day weekend, the mother’s birthday and the children’s birthdays; that changeover to take place at AC Street McDonald’s, Suburb D if not at school; that the mother and father keep the other advised at all times of current residential address and telephone/mobile numbers; that both parents facilitate a reasonable request by the children to talk to the other; that the father advise the mother of any significant illness or injury affecting the children though the father alone shall be responsible for decisions in relation to all treatment or other interventions undertaken by the professionals; and that mother and father attend a Parenting Orders Program.

3. For ease of reference, the final orders made on 26 February 2015 specifically referred in the subsequent applications before the Court are as follows:

   (1)      All previous parenting orders in relation to the children [B] born … 2003 and [C] born … 2005 (“the children”) be discharged.

   (2)      The father have sole parental responsibility in respect of all major long term issues (as that expression is defined in the Family Law Act 1975 (Cth) (as amended) (“the Act”)) for the children, save that the father shall, prior to making the sole ultimate decision about any such issue, use his best endeavours to advise the mother in writing (via letter, email or communication book) of the decision intended to be made, in order to:

   (a)      seek the mother’s written response in relation thereto;

   (b)      consider, by reference to the child’s best interests, any such response prior to making any decision; and

   (c)      advise the mother in writing as soon as reasonably practicable of his ultimate decision.

   …

   (4)      The children spend time and communicate with the mother as follows:

   (a)      during school terms, each alternate weekend from the conclusion of school (or 3.30 pm if it is a non-school day) on Friday until the commencement of school (or 9.00 am if it is a non-school day) on Monday commencing on Friday 13 March 2015;

   (b)      for the first half of each school term holiday, from the conclusion of school on the last day of term until 5.00 pm on the middle Saturday of that school holiday period;

   (c)      from 12.00 pm on Christmas Day until 12.00 pm on Boxing Day in 2015 and each alternate year thereafter, and from 12.00 pm on Christmas Eve until 12.00 pm on Christmas Day in 2016 and each alternate year;

   (d)      during the long summer vacation from 12.00 pm Boxing Day until 12.00 pm on 11 January commencing from the 2015/16 long summer holidays and each alternate year thereafter, and from 12.00 pm on 10 January until 12.00 pm on 26 January in the 2016/2017 long summer holidays and each alternate year thereafter;

   (e)      in the event that the children are not otherwise with the mother on the Mother’s Day weekend, the children spend time with the mother on the Mother’s Day weekend from the conclusion of school on the Friday of that weekend until the commencement of school on the following Monday;

   (f)       on the mother’s birthday, from the conclusion of school until 8.00 pm when such occasion falls on a week day and from 10.00 am until 6.00 pm when such occasion falls on a weekend during which the children are not otherwise with the mother

   (g)      on each of the children’s birthdays from the conclusion of school until 6.30 pm when such occasions fall on a week day and from 10.00 am until 3.00 pm when they fall on a weekend; and

   (h)      that the children communicate with the mother each Wednesday between 6.00 pm and 6.30 pm, with the father to initiate the call to the mother’s mobile telephone number.

   …

   (6)      Where changeover does not take place at school, it is to take place at [AC Street] McDonald’s, Suburb D, or any other place agreed upon in writing between the parties.

   …

   (8)      The mother and father keep the other advised at all times of a current telephone/mobile number.

   …

   (10)     The mother and father use a communication book to communicate with each other on matters relevant to the children’s welfare and education and each parent use their best endeavours to ensure that the communication book travels with the children at changeover.

   …

   (12)     As soon as practicable, the father advise the mother of any significant illness or injury that affects the children whilst they are in his care and in the event of significant illness or injury, the father authorise the treating medical professionals to speak to the mother about the children’s treatment, though the father alone shall be responsible for decisions relating to all treatment or other interventions undertaken by the professionals.

   (15)     The father authorise the children’s school to provide to the mother, at her expense, all school reports, school photograph order forms and newsletters. 

   (16)     The parents be at liberty to attend any school functions to which parents are invited in the usual course regardless of in whose care the children are at the relevant time, save for any contrary direction made by school authorities.  The parents provide written notice to the other parent, in the communication book or by email, at least seven days prior to that school function of their intended attendance.

   (17)     In the event that the children are to be removed from the state of Victoria for the purpose of holidays, the travelling parent give the other parent at least 14 days written notice of the intention to travel and ensure that the other parent has contact details for the children whilst they are away.

   …

   (24)     In relation to the conduct of the sale:

   (g) the wife shall do all things necessary, including but not limited to making a request pursuant to reg 7A.06(1) of the Superannuation Industry (Supervision) Regulations 1994 (Cth), to effect the rollover or transfer of the transferable benefits out of the husband’s interest in the Fund into a fund of the wife’s choosing (namely MLC MasterKey Personal Super Fund account number 27796031) in accordance with reg 7A.12 of the Superannuation Industry (Supervision) Regulations 1994 (Cth).

   …

   (26)     BY CONSENT, the husband will direct and authorise the trustee of the Fund to communicate with the wife and/or any person authorised by her in writing:

   (a)      to answer any reasonable enquiries as may be made by her or on her behalf from time to time regarding her entitlement in the Fund; and

   (b)      to give the wife and/or her authorised representatives a copy of any notice of any application or request by the husband which seeks release of entitlements in the Fund insofar as that release of entitlements in the Fund is pursuant to these orders.

Establishing a Vexatious Proceeding Order

1. Vexatious proceedings are dealt with under Part XIB of the Family Law Act1975 (“Act”). The provisions and the history of them are comprehensively discussed by Benjamin J in Cooney & Atha [2014] FamCA 104.

2. Section 118 of the Act provides:

   Frivolous or vexatious proceedings

   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; and

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

3. Section 102QB sets out the statutory basis underlying the making of a vexatious proceeding order, it provides:

   (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.

4. Section 102Q(1) defines a vexatious proceedings order as an order made under s 102QB(2).

5. Section 102QB(2) gives a court power to make various types of orders, namely:

   (a)s 102QB(2)(a) empowers staying or dismissing proceedings;

   (b)s 102QB(2)(b) empowers a court to make a vexatious proceedings order to which the provisions of s 102QD apply (i.e. to stay proceedings and provide a mechanism for leave to commence);

   (c)s 102QB(2)(c) makes provision for any other order a court considers appropriate.

6. It is by operation of an order pursuant to s 102QB(2)(b) including use of the term ‘without first having been granted leave to commence that proceeding pursuant to s 102QG of the Act’ (or similar) that brings in effect the prohibitions, stay and leave provisions contained in s 102QD.

7. Section 102QB(6) provides that a court may have regard to proceedings or orders made by an Australian court or tribunal. The mother has made complaints against a number of professionals in this case but, to my knowledge, those complaints have not progressed to a hearing before a court or tribunal.

8. In this case, I exercise the court’s power pursuant to s 102QB(2). Accordingly, there is a two part threshold which needed to be met. First, have there have been vexatious proceedings instituted or conducted in Australian courts or tribunals? Second, has the mother instituted or conducted such proceedings frequently?

9. I then considered whether to exercise the discretion set out in s 102QB(2) of the Act and make a vexatious proceedings order. In considering whether to make a vexatious proceedings order I consider the scope and nature of relief available.

Which Proceedings, If Any, Constitute Vexatious Proceedings Instituted or Conducted by the Mother in Australian Courts or Tribunals?

1. The term vexatious proceedings is defined in s 102Q(1) as:

   c)proceedings that are an abuse of the process of a court or tribunal; and

   d)proceedings instituted in a court or tribunal to harass or annoy, to cause delay or detriment, or for another wrongful purpose; and

   e)proceedings instituted or pursued in a court or tribunal without reasonable ground; and

   f)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.

1. I will endeavour to deal with the various applications filed by the mother since 26 February 2015 and the disposition of those applications in roughly chronological order.

2. The mother filed her first three applications on the same day, 23 March 2015, less than a month after the final orders were pronounced and before she filed a Notice to Appeal against the final orders.

3. The mother filed a contempt application on 23 March 2015 seeking that the father be dealt with for misinforming the court that he was up to date with his child support; that he had a script for medication for B and that he only gave it to B when he needed it; and that he had provided paperwork to the mother’s then solicitor about being an owner builder (document 109).

4. This first contempt application was heard by Benjamin J on 12 May 2015. The mother and father both appeared in person. This contempt application was dismissed by his Honour pursuant to s118. Relevantly, his Honour’s reasons for decision, published at [2015] FamCA 717 include the following statement:

   [8] The final matter is the mother’s application for contempt filed 23 March 2015. That application asserts that the father lied in his evidence in the proceedings before her Honour Justice Thornton. It is in essence an endeavour, it would seem to me, by the mother to either re-litigate the proceedings that were heard by her Honour or to take some sort of quasi-criminal proceedings for alleged perjury by the father. Given the nature of the allegations and the nature of the application, again that cannot succeed by way of a contempt application. Accordingly, I summarily dismiss the contempt application of the mother filed 23 March 2015 pursuant to s 118 of the Act. I dismiss all other proceedings before the Court.

5. The mother filed a second contempt application on 23 March 2015. It was not against the father. The mother sought that the Independent Children’s Lawyer be dealt with for denying the mother of natural justice by refusing to comply with Justice Thornton’s verbal direction to inform the mother of the details of the case on the 30 December 2014. The mother sought the ability to re-open and adduce further evidence (document 110).

6. The second contempt application was heard by Macmillan J on 6 May 2015 and was dismissed. Relevantly, Macmillan J’s reasons, which are published at [2015] FamCA 800, commenced and concluded with the following passages:

   [1] The application listed before me in the Judicial Duty List this day is the mother’s application that Caroline Smith who was, until final orders were made by Justice Thornton on 26 February 2015, the Independent Children’s Lawyer in this case, that she be dealt with contempt pursuant to s 112AP of the Family Law Act 1975 (Cth) (“the Act”).

   [2] It was counsel for the Independent Children’s Lawyer’s application that the mother’s application for contempt should be summarily dismissed.  The mother’s application, which was filed on 23 March 2015, alleged as follows:

   By verbal direction Caroline Smith, Independent Children’s Lawyer, was directed by Justice Thornton to inform the mother (namely the applicant in these proceedings, [Ms Peters]) the details of the case on the 30^th December 2014 and that the mother have the ability to re open and adduce further evidence regarding the Family Court case on foot. 

   Caroline Smith, flagrantly denied me of natural justice as she refused to comply with this direction. 

   [3] It was submitted by counsel for the Independent Children’s Lawyer that the mother’s application did not comply with the Family Law Rules 2004 (Cth) (“the Rules”) in that it had not been signed in the presence of the justice of the peace, notary public, or a lawyer and that she had not complied with rule 21.02 of the Rules in that she had not filed an affidavit in support of that application. Counsel for the Independent Children’s Lawyer, whilst noting the deficiencies in the matter’s application and supporting material, did not rely upon those deficiencies for the purposes of the application for summary dismissal.

   [4] Although the mother did not file an affidavit in support of her application she did attach to that application a document headed “Part D Evidence”.  That document was similarly not sworn before a justice of the peace, notary public or a lawyer.  Counsel for the Independent Children’s Lawyer submitted, correctly so in my view, that, apart from paragraph 7, 8 and possibly paragraph 26, the document attached to the mother’s application should be struck out on the basis on that it was not relevant to the issues in dispute. 

   [5] The mother made submissions with respect to various other paragraphs which she submitted were relevant but, ultimately, apart from the first sentence in paragraph 13 of the document, conceded that the balance of the document should be struck out.  On that basis the evidence before the Court for the purposes of determining the Independent Children’s Lawyer’s application for summary dismissal is paragraph 7, 8, the first sentence of paragraph 13 and paragraph 26 of the document attached to the mother’s application.

   …

   [15] Thornton J did not order direct or even ask the Independent Children’s Lawyer to contact the mother.  There is similarly no evidence before me in support of the application for contempt that the Independent Children’s Lawyer has challenged the authority of the Court or interfered with the administration of justice.  Although the mother made broad and general submissions with respect to what she said was the improper conduct of the Independent Children’s Lawyer, these are contempt proceedings and the evidence upon which the mother relies must be relevant to the allegations she makes and bearing in mind the standard of proof is the criminal standard. 

   [16] This is not a case which rests upon the evidence not meeting the criminal standard.  There is, in this case, simply no evidence to support the mother’s allegations.  In all of the circumstances I am satisfied that not only is there no reasonable likelihood of its success, but that the mother’s application in this case is misconceived and doomed to fail.  On that basis I propose to summarily dismiss the mother’s application. 

7. Following her Honour’s dismissal of the mother’s contempt application, the Independent Children’s Lawyer made an application that the mother pay her costs. Submissions were made on 6 May 2015. On 12 October 2015 Macmillan J ordered that the mother pay costs to the independent children’s lawyer in the sum of $3505, such payment to be made from proceeds of sale of real properties in Suburb D to which the mother is entitled as and when settlement is affected. It is apparent from her Honour’s reasons, which are on the court file but which may not yet have been allocated a case neutral citation, that the quantum of costs and the time of payment of award of costs was as proposed by the Independent Children’s Lawyer.

8. The mother filed a contravention application on 23 March 2015 alleging seven counts including that the father has, without reasonable excuse, failed to provide a communication book; failed to inform the mother of school events; failed to provide written paperwork supplied to the building commissioner regarding the family home; and failed in the previous agreement with Thornton J to provide access to the Caremonkey account at school (document 108).

9. The mother’s contravention application filed on 23 March 2015 was eventually listed before Benjamin J for final hearing on 12 May 2015. His Honour’s reasons (op cit) record at [1] that the mother “does not pursue the applications for contraventions” and his Honour proceeded to dismiss the application.

10. On the 25 March 2015 the mother filed a contravention application alleging the father had contravened orders 1 and 8 made on the 3 October 2012 (document 111). The mother alleged 13 counts whereby the father had failed to inform her of either B’s medical situation or various school events.

11. As indicated above, on 26 March 2015, the mother filed a Notice of Appeal against the final parenting orders made on 26 February 2015.

12. On the 2 April 2015 the mother filed a contravention application alleging the father had, without reasonable excuse, breached orders made on the 26 February 2015 by Thornton J. Specifically, orders 4(h), 10 and the legal obligations set out in the parenting orders pursuant to s 65DA(2) (document 115). The mother alleged seven contraventions of orders by the father’s failure to provide written agreements, his failure to allow the mother to speak to the children, the father’s failure to acknowledge written agreements, and his failure to provide a communication book.

13. The mother’s contravention application filed 2 April 2015 was dismissed by Benjamin J on 12 May 2015. In the course of his Honour’s reasons (op cit), his Honour said:

    [6] Similarly, when one goes to the contraventions set out in the application filed 2 April 2015 (document 115) they seem to relate to the failure to provide written agreements, the failure to speak to the children, the failure to acknowledge written agreements, and the failure to provide a communication book.  On the material before me, they cannot succeed.  They amount to an abuse of process so accordingly the seven contraventions asserted in the application filed 2 April 2015 must be dismissed.

14. On 9 April 2015 the mother filed an application is a case which sought orders which cut across entirely the final orders made on 26 February 2015. The mother sought:

    (1)That the Family Court Orders dated 26 February 2015 by Thornton J be suspended/stay granted.  

    (2)The children, [B], born … and [C], born … reside with the mother. That make up time of six weeks be provided to the mother

    (3)Thereafter every second weekend from the end of school Friday until the commencement of school Monday the father has the children

    (4)Every Wednesday at 6.00 pm the children call their father’s mobile

    (5)Any other time the children request to speak with their father the mother arranges such a call

    (6)The mother has full parental responsibility of the children

    (7)The address of the mother be suppressed and not disclosed to the father or third parties

    (8)The subpoenaed previous information is provided to be viewed by the applicant

    (9)Due to financial hardship, I request the transcripts of the trial, dated August 2014 be made available to the applicant

    (10)All property subject to the property pool not be sold or disposed of until such time the appeal judgment occurs

    (11)These orders stay in effect until such time further orders are made

    (12)The Independent Children’s Lawyer Caroline Smith be removed

    (13)Any other orders that the court deems appropriate.

15. The application was heard on 28 April 2015 before Thornton J. Her Honour subsequently delivered her decision on 26 May 2015 which is published as [2015] Fam CA 390. In essence, her Honour refused the mother’s application for stay of the orders made on 26 February 2015, dismissed (2) to (11) of the above application and gave the mother leave to withdraw that part of her application (12) in which she sought the removal of the Independent Children’s Lawyer.

16. Notably, Thornton J stated as follows:

    [74] The change brought about by the final parenting orders, from the ‘week about’ living arrangement between the mother and the father, to living full-time with the father would no doubt have impacted on the children, but there is no evidence from the applicant as to the circumstances of the children sufficient to support even a return to the previous arrangement before the trial, let alone the new arrangement she proposes.  There is no evidence before me from the respondent and essentially there is no evidence that it would be in the best interests of the children for their living arrangements to be changed again in circumstances where, if the mother were unsuccessful in her appeal, the children’s living arrangements would be changed yet again.  Having regard to the findings I made in the trial, this would be very unsettling and confusing for the children and accordingly not in their best interests.

    [75] The evidence relied upon by the applicant for her stay application does not include any reference to the circumstances of the children, other than complaints about contravention proceedings which she has brought against the respondent.  Even allowing for this deficiency in her evidence, her assertions in Court about the children failing to telephone her appeared to be without foundation.  This is because on her own admission she has been unable to provide the respondent with a mobile telephone number or a landline telephone number for the children to telephone her.  This calls into question her bona fides.

    [76] The best interests of the children were the subject of consideration in the trial and the final orders made, reflect their best interests for the reasons set out in the judgment of 26 February 2015.  Nothing in the mother’s affidavit, in so far as it sets out her evidence touching on the best interests of the children, discloses evidence that was not before me in the trial.

17. I am satisfied that the orders sought by the mother as paragraphs (2) to (11) above were misconceived and/or an abuse of process.

18. On the 13 April 2015 the mother filed a contravention application alleging the father had, without reasonable excuse, breached orders made on the 26 February 2015; specifically, orders 4(h), 10 and the legal obligations set out in the parenting orders pursuant to s 65DA(2) (document 124). The mother set out eight alleged contraventions regarding the father’s failure to comply with the directions of Justice Thornton. This contravention application was dismissed by Benjamin J on 12 May 2015. In relation to the application, his Honour commented:

    [7] The final application which is on the file is that of 13 April 2015.  That application again talks about failure to comply with the directions of Justice Thornton: in contravention one, removing the mother from the child’s school bank account in contravention 2, failing to inform, which cannot, in the circumstance of this matter and given the evidence, constitute a breach of the order.  Similarly, contraventions five, six, seven and eight cannot succeed given the comments made earlier, and accordingly the eight contraventions made in the application file 13 April 2015 (document 124) amount to an abuse of process and are dismissed.

19. On the 22 April 2015 the mother filed a contravention application alleging the father has breached orders made by Thornton J on 26 February 2015; specifically, orders 2(a), (b) and (c), 4(h), 10, 12, 15, 16 and the legal obligations set out in the parenting orders pursuant to s 65DA(2) (document 127). The mother itemised eight alleged contraventions.

20. On the 22 April 2015 the mother filed an additional contravention application alleging the father has breached orders made by Thornton J on 26 February 2015; specifically, orders 24(g), 26(a) and (b) and the legal obligations set out in the parenting orders pursuant to s 65DA(2) (document 130). The mother itemised six alleged contraventions.

21. The contravention applications filed on 22 April 2015 were dismissed by Benjamin J on 12 May 2015. In relation to those applications, his Honour found:

    [3] ... As to the following applications, in her application filed 22 April 2015 there are some eight alleged contraventions, of which contravention six, is withdrawn and dismissed.  As to contravention one the evidence is not such as would amount to a breach of order 12, given the material contained in the affidavit, the nature of the complaint, and the nature of the order.  It cannot be sustained on its own level, so it is dismissed.

    [4] Contravention two alleges a breach of some direction made by Justice Thornton on 30 December 2014 before the orders were made and could not fail and is an abuse of process and is dismissed under s 118 of the Family Law Act 1975 (Cth) (“the Act’)

    [5] In terms of contraventions three, four and five, contravention three cannot succeed, as the order provides for a mobile telephone, and the mother has no mobile telephone. Contravention four, even on the evidence, cannot succeed, given the short notice involved. Contravention five is a matter for the mother to make her inquiries of the school and, given the comments made earlier, it must fail. Contravention seven and eight just cannot be contraventions of the orders, given the nature of the orders. Accordingly, contraventions three, four, five, seven and eight filed the 22 April 2013 are dismissed as an abuse of process pursuant to s 118 of the Act.

22. On the 24 April 2015 the mother filed a contravention application alleging the father has breached orders made by Thornton J on 26 February 2015; specifically, orders 2(a)–(c), 4(h), 10, 12, 15, 16 and the legal obligations set out in the parenting orders pursuant to s 65DA(2) (document 131). The mother alleged one contravention. 

23. On the 12 August 2015 the mother filed a contravention application alleging the father has breached orders made by Thornton J on 26 February 2015; specifically, orders 4(h) and the legal obligations set out in the parenting orders pursuant to s 65DA(2) (document 143). The mother alleged 22 contraventions. 

24. The mother filed an application in a case on 16 September 2015 seeking interim parenting and financial orders and protection orders. On the same day, the mother also filed a Notice of Child Abuse, Family Violence, or Risk of Family Violence against the father which triggered a notification to the Department of Health and Human Services (“DHHS”).

25. The mother filed an initiating application on 27 September 2015 via the Commonwealth Courts’ Portal, seeking interim and final parenting and financial orders. The mother seeks 18 paragraphs of interim orders including that the children reside immediately with her, financial discovery by the father and the father undergo behavioural change courses and pending completion be restricted to communication with the children once a week by telephone. The mother seeks 24 paragraphs of final orders including that she have sole parental responsibility for the children, the father have time with the children including overnight time each week, the father take the children to activities and church services during his time, financial relief and that “the $5000 payable to Legal Aid by the mother be reversed”.

26. On 27 September, the mother also filed another Notice of Child Abuse, Family Violence, or Risk of Family Violence against the father which triggered another notification to DHHS. I will discuss the outcome of that notification later in these reasons.

27. The applications listed from [43]–[46] above were listed for hearing at the Judicial Duty List on 6 October 2015 before me. The mother did not appear. At 8.03 a.m., the Registry received a message from the mother which was subsequently brought to my attention. The message said:[1]

    To whom it may concern, I have a mouth injury from attending the dentist yesterday fom my denturs, for four lost teeth from family violence, As a result, my mouth has swollen and my gums are bleeding. I have taken painkilles but I am in a state. Can I kindly arrange a telephone mention today for the judicial hearing with Justice Johns in 4e. Please confirm.

    [1] Exhibit "B”

28. I permitted the mother to appear by telephone on 6 October 2015 in spite of her not having followed the correct procedure for an application to appear by electronic means. As I have set out at the commencement of these reasons, I made orders that the matter be fixed for case management before me on the 28 October 2015 and made the notification in relation to a s 102QB order of the court’s own volition.

29. On 6 October 2015, I also ordered that the following outstanding applications be set down for determination on a date to be fixed:

    a)Mother’s contravention application filed on 12 August 2015; see [44]

    b)Mother’s application in a case filed 16 September 2015; see [45]

    c)Father’s contravention application filed 28 September 2015; see [72]

    d)Father’s application in a case filed on 28 September 2015; see [73]

    e)Mother’s initiating application filed 27 September 2015; see [46]

    f)and any application by the mother to discharge paragraph 5 of the Order made on 28 September 2015;

1. Paragraph 5 of the Order made on 28 September 2015 was the order by which Macmillan J suspended the mother’s entitlement to face-to-face time and communication with the children until further order and in the context of having made a recovery order for the collection of the children from the mother.

2. On the 13 October 2015 both parties were informed by email that the substantive proceedings would be set down for hearing before Benjamin J on 21 October 2015[2]. They were also notified and that the case management hearing before me on 28 October 2015 would be heard at the amended time of 12.15 pm, which it was. 

   [2] Exhibit “D”

3. On 6 October I also ordered[3] that:

   By not later than 10.00 am on 16 October 2015 the mother file and serve a letter from her dentist which details the treatment which she received from her dentist on 5 October 2015, as described in the mother’s message to the Court of 6 October 2015, and the nature of her incapacity and inability to attend Court this day.

   [3][6]

4. The mother was left in no doubt about the nature of the letter. I had the following exchange with the mother[4]:

   HER HONOUR: Well, you’re going to have to produce evidence from the dentist as to your inability to attend court today. And that has to be a specific letter, not a certificate that says. “[Ms Peters] is unable to attend work for three days.” It has to be a letter, on his or her letterhead, which details the treatment that you received, and, in his or her professional opinion, the period for which you are incapacitated, and the nature of your incapacity.  So that will be within the next 10 days. 

   [4] Transcript in Confidence 6.10.2015 page 5, line 17.

5. By email dated 15 October 2015 the mother sent a copy of a letter on the letterhead of one Dr KV MB.BS.(Melb) dated 6 October 2015[5]. It is headed “Medical Certificate” and reads as follows:

   [Ms Peters] informs me:

   1.On 5-10-15 she attended the dentist.

   2.On 6-10-15 she woke up with a swollen face and asthma and thus was unable to attend court.

   In my opinion, her symptoms are consistent with severe hay fever and in fact I have prescribed cortisone for her.

   It is not clear whether the signature is affixed by Dr KV or on his behalf. In any event, it is at the very least debateable whether the document satisfies paragraph 6 of the Order made on 6 October 2015.

   [5] Exhibit “C”

6. On 21 October, 2015 the father appeared before Benjamin J but the mother did not. Benjamin J made orders dismissing the following applications:

   a)The mother’s contravention application filed 12 August 2015 (described earlier in these reasons at [44]);

   b)The mother’s application in a case filed 16 September 2015 (described earlier in these reasons at [45]);

   c)The mother’s initiating application filed 27 September 2015 (described earlier in these reasons at [46]).

7. In relation to the father’s application in a case filed on the 28 September, 2015 his Honour ordered the children be placed on the Airport Watch List until they reached the age of 18 years. The father sought no further orders in relation to his application in a case and it was otherwise withdrawn. The father withdrew his application for contravention filed on the 28 September and the court noted that “the father states that he does so simply because, at this stage, there is no appearance by the wife, and he asserts he is exhausted by the process”. The upshot of the hearing before Benjamin J on 21 October was to dismiss all extant applications before the Court at first instance.

Mother’s Application for Re-Instatement

1. The mother has not filed a Notice of Appeal in relation to the Order made by Benjamin J on 21 October 2015. However, some five weeks after Benjamin J’s dismissal of all extant proceedings, on 25 October 2015, the mother filed via the Commonwealth Courts’ Portal an application in a case. In summary, the mother seeks the reinstatement and expedited hearing of the applications which were dismissed by Benjamin J on 21 October 2015. In particular, that the applications for contravention made by the mother be relisted to be reheard as a matter of urgency; and that the initiating application which is supported by a Form 4 notice, be relisted as a matter of urgency and be “reheard”. The relief sought by the mother in relation to the Form 4 belies the facts that a Form 4 Notice of Risk of Abuse is evidentiary in nature and not an application that stands to be determined.

2. The mother said variously that she was not aware of the hearing before Benjamin J on 21 October 2015 and that she was aware of it but had thought that it was in Sydney and, therefore, “a mistake”. The mother confirmed that the address to which email notification of the date and time of hearing dated “13/10/2015 07:40 AM” was sent was, indeed, her email address. The mother was fully aware that these proceedings (or more particularly the applications referred to by the order made 6 October 2015) were listed before Benjamin J on 21 October 2015. The mother claims to have been confused because the hearing was listed in Sydney. As best I can ascertain the matter did not appear in the Melbourne court list on 21 October 2015. There is no evidence that the mother was informed that the case would be heard by his Honour by video link between the Melbourne and Sydney Registries before the matter was determined. On this occasion and amidst circumstances that may have been confusing for the mother (but apparently not for the father), I will give the mother the benefit of the doubt and find that although the matter was listed before Benjamin J the mother was uncertain where to appear and, therefore, did not appear at all. 

3. It does not appear that Benjamin J dealt with the wife’s applications on the merits. Accordingly I have power to reinstate them and I do so. I will allocate a hearing of these applications on a date to be fixed. If the father wishes to reinstate the applications which he withdrew before Benjamin J then I give him leave to do so. This will reinstate the parties to the position they were in prior to the 21 October 2015. If the father wants to reinstate his applications, he should give notice to the mother and my associate in writing within 14 days. For the avoidance of doubt none of these applications are impacted by the Order I make against the mother pursuant to s 102QB.

Independent Children’s Lawyer

1. On 28 October 2015 I requested Victoria Legal Aid to appoint an independent children’s lawyer to represent the children’s interests. The mother opposed Ms Caroline Smith’s re-appointment and specified that she (the mother) had made a professional complaint against Ms Smith and, for that matter, the balance of practitioners employed by Victoria Legal Aid within the section from which independent children’s lawyers are drawn.

Do These Proceedings Amount to the Mother Frequently Instituting and Conducting Vexatious Proceedings?

1. I am satisfied that the mother has made applications to the Court which are vexatious within the meaning of s 102Q(1). The proceedings have had a real and negative impact on the father but have served no useful purpose. I accept, as Benjamin J did on 21 October 2015, that the father is exhausted by the process. Some applications have been brought by the mother and not prosecuted, others have been found not to be based on a reasonable ground, some have been found to have been vexatious and I have characterised one as an abuse of process.

2. I am satisfied that the mother has made frequent applications to this court from 26 February 2015 when final orders were pronounced by Thornton J to 28 October 2015. On my calculation, the mother has filed two notices of risk and 15 applications including:

   (a)One application initiating proceedings;

   (b)Two contempt applications (including one against the independent children’s lawyer);

   (c)Eight contravention applications which contain a total of 72 counts of alleged contravention;

   (d)Four applications in a case.

3. The contravention application of 12 August 2015, the application in a case filed 16 September 2015, and the mother’s application initiating proceedings filed 27 September are, as a result of this decision, yet to be determined. So I do not have regard to them as either being vexatious or frequently filed applications which are vexatious in nature.

4. However, I note that with the exception of the application for reinstatement (which I have now granted) the mother has not succeeded in any of her applications to date. All of the mother’s applications which have been determined, have been dismissed.

5. I regard it as significant that the mother’s applications have predominantly been contravention applications and, as I have described, applications with multiple counts. Each of those counts is a case which the father has had to be prepared to answer. If the father did not appear on the return date of a contravention application, the mother would be entitled to ask that a warrant be issued for his arrest. In this sense the applications which the father faces are onerous and significant. However, by virtue of the mother’s conduct in bringing and then failing to prosecute her applications, the father has been put to a great deal of trouble which, I am prepared to assume, impacts adversely on the children.

Relativity of Father’s Conduct

1. The father has made a number of applications against the mother since the final orders were pronounced on 26 February 2015. Apart from those mentioned above, the father has made other applications.

2. On 26 May 2015 the father filed an application is a case seeking that the mother provide her current residential address and mobile telephone number; that the mother sign a joint letter to the President of the Real Estate Institute of Victoria seeking their determination of a selling agent of the Suburb D properties; that in the event the mother refuses or fails to sign the letter an officer of the Court sign on her behalf; that in the event the mother refuses or fails to sign any documents necessary to the effect of the sale of the Suburb D property, an officer of the Court sign any necessary documents; and that the mother pay the father’s costs of and incidental to this application.

3. The matter was listed for 7 July 2015 before her Honour Justice Macmillan. During the hearing her Honour gave the mother time to read the documents that had been filed by the father so that the mother could respond to the application. The documents had been emailed to the mother on three occasions by the father until the night before the hearing and she had not been able to open them. The father had also sent the documents by registered mail to the address given by the mother but those documents were not collected by her. The mother did not return to Court after her Honour had given her the opportunity to read the material and the matter was left undefended. Her Honour granted the orders that the father was seeking. 

4. Her Honour Justice Macmillan noted in her reasons for judgment on the 7 July 2015 that the father had drawn her attention to the fact that the mother had been using a blog to express her views about the Family Court and her proceedings more generally. In particular it was raised that the blog suggested that the author had recorded a conversation that took place between a Registrar of this Court and the writer. As the mother was not in court when this information was raised, her Honour ordered that the father file an amended affidavit setting out the circumstances in which he had become aware of the material and what information may have been distributed that might impact on the welfare of the children. She adjourned the matter so that the mother could respond. 

5. On the 14 July 2015 the father submitted an amended application seeking orders that the mother discontinue with writing any details in a blog or other electronic form which refers to this case — MLC 8590/2012 — which identifies parties to the proceedings; and that in the event the mother fails to comply the Court consider reasonable punishment pursuant to s 121 of the Act. Although it is marked amended application it is a new application.

6. The father filed a contravention application on 28 September 2015 alleging that without reasonable excuse the mother did not present the children, B and C for changeover. 

7. The father filed an application in a case on 28 September 2015 seeking recovery of the children; dismissal of orders 4(a)–(g), 16 and 17; the mother have access every second Saturday from 11-3pm in a supervised facility at her own cost; that the mother does not communicate by email or any other electronic form of commination; that the mother be placed on the Airports Watch List; that the mother not contact the father by any means; that the mother pay the father’s costs of and incidental to the application. 

8. I am not concerned by the volume of applications filed by the father or the manner in which he has conducted himself as a self-represented litigant or the content of the applications.

9. Significantly for my consideration of whether to make a vexatious proceedings order against the mother, on 28 October 2015 the mother said that she would continue to make applications.

10. I have considered the matters about which the mother wants to make application. She submits that parenting arrangements require urgent attention. If that is so, the mother could make an application to expedite the appeal rather than make application to extend times applicable to her. Likewise, the mother could attend court to prosecute her applications diligently rather than leave court, as she did on 7 July 2015.

11. As a consequence of a Form 4 Notice of Child Abuse, Family Violence or Risk of Family Violence which the mother filed on 16 September 2015, DHHS has investigated this matter and provided a report to the Court in correspondence dated 26 October 2015.[6] DHHS says that it does not propose to intervene in these proceedings “but indicate that the Department has information in which the Court may be interested.” DHHS provides a summary of the 12 notifications which it received from 30 August 2012 to 17 July 2015. In relation to the last notification, being the Form 4 received by the Department on 28 September 2015, DHHS summarised its current protective assessment as follows:[7]

    [6] Exhibit “DHHS1”

    [7] Ibid 4–5.

    On 28 September 2015 Child Protection received a report with very limited information in relation to [B] and [C] being exposed to family violence (no further details), and being at risk of child abuse (no further details). Contact was therefore made with the Federal Circuit Court who confirmed the current family law proceedings before the Court.

    [Ms Peters’] affidavit of 16 September 2015 was obtained and upon review it appeared that the concerns raised by [Ms Peters] in her affidavit related to historic instances already previously reported to Child Protection. No new concerns appeared to have been raise by [Ms Peters], however given the significant protective history in relation to concerns for the children being at risk of significant emotional harm (particularly due to the acrimony in the parental relationship and concerns that the children were being prompted by [Ms Peters] in raising concerns about [Mr Ortona]), follow-up occurred with the school, SOCIT, the Family Violence Unit and the Independent Children’s Lawyer (Ms Caroline Smith).

    SOCIT and the Family Violence Unit advised that they would be taking no further action and it was reported that [Mr Ortona] had been an affected family member of incident of family violence perpetrated by [Ms Peters] on three occasions, with the most recent being in March 2015. However, [Mr Ortona] had also been a respondent in three incidents of family violence reported to Police — twice where [B] was the affected family member (both times due to [Ms Peters] alleging that [B] had been abused and both times appeared to be already known to Child Protection), and a third occasion on 02/03/2012 where there had been an argument between [Ms Peters] and [Mr Ortona] to due (sic) ongoing disputes regarding their relationship. It was noted by Police that this incident was a verbal argument only (nothing physical occurred) and it was noted that [Ms Peters] was affected by alcohol at the time and Police records indicate that there was no violence or threats in this incident.

    Ms Caroline Smith (the Independent Children’s Lawyer) advised that she had been discharged from the matter in or around February 2015 and therefore had no knowledge about the current family situation or circumstances.

    Feedback from staff at the [RG School] was sought and it was reported that the class teachers of both children observed no concerns for the children. In fact, the feedback from both teachers indicated hat (sic) the children have “improved out of sight” over the last few months whilst being in [Mr Ortona’s] care. No concerns had been raised about [Mr Ortona’s] presentation at the school, nor any concerns raised regarding his interactions with the children which were noted to be appropriate. The school agreed to monitor the family’s presentation at school and to report to Child Protection should any protective concerns be identified in the future.

    There have been thirteen reports of concerns for the children made to Child Protection between August 2012 and the present (September 2015). Information obtained during the current report does not indicate that there is a need for future protective intervention by Child Protection whilst the children remain in the primary care of [Mr Ortona].

    However, given the significant protective history as outlined in this letter, particularly in relation to concerns regarding [Ms Peters] who has previously been assessed as responsible for significant emotional harm of the children, it is the assessment of Child Protection that the children require a primary caregiver who can not only meet their needs by providing them with stability, routing and boundaries, but the children also need a primary carer who can protect them from harm (including protection from being exposed to any conflict that may exist in the relationship between [Ms Peters] and [Mr Ortona]).

    At this time it is therefore respectfully recommended that the Court note the significant Child Protection history as detailed above, and the current protective assessment that whilst the children remain in the care of [Mr Ortona] and no protective concerns are raised regarding this, the matter will not require further statutory intervention. Given the matter is currently before the Family Court of Australia, should the Court wish, an 11F Family Report can be made ad (sic) further liaison can occur with the Child Protection Family Law Court Liaison Officer.

    The matter closed at the Intake and Assessment Phase on 13 October 2015.

12. The above evidence from DHHS is untested but it is also uncontradicted. I give it weight in exercising my discretion to require the mother to obtain leave of the Court before instituting any further parenting proceedings. The Order I make does not prohibit the mother from coming to court, it merely protects the father from direct, unfiltered impact of her applications.

13. I take into account the mother’s submission that she has a post-traumatic stress disorder but that is only a submission. She presents no evidence other than her own inexpert opinion. The mother’s assertion that she could not attend court on 6 October 2015 because her gums were bleeding and her mouth was swollen and she had required dental treatment due to injuries suffered by her as a victim of domestic violence is not corroborated by the letter from Dr KV or on his letter head. He opines that the mother was suffering from hay fever on 6 October 2015.

14. Finally, on 28 October 2015, I put the parties on notice that no further applications should be filed between 28 October 2015 and the delivery of this decision. Furthermore, that I would consider making any order under s102Q of retrospective effect so that any application filed between 28 October and my handing down of this decision could fall foul of an order that no application be filed by the mother without she first having obtained leave of the court. I do so.

I certify that the preceding eighty (80) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett delivered on 6 November 2015

Legal Associate:

Date: 6 November 2015