Pitman & Hynes (No 2)
[2024] FedCFamC2F 206
•21 February 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Pitman & Hynes (No 2) [2024] FedCFamC2F 206
File number: WOC 772 of 2011 Judgment of: JUDGE LIOUMIS Date of judgment: 21 February 2024 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Vexatious Proceedings Order – Where the Applicant sought an order pursuant to section 102QB(2)(b) of the Family Law Act 1975 (Cth) prohibiting the Respondent from instituting further proceedings without leave – Where the proceedings have a long history – Application granted Legislation: Family Law Act 1975 (Cth) Pt XIB, ss 4, 69ZK, 102NA, 102Q, 102QB, 102QE
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 5.15
Cases cited: Official Trustee in Bankruptcy v Gargan (No 2) [2009] FCA 398
Pencious & Searle [2017] FamCAFC 210
Pitman & Hynes [2021] FamCA 300
Pitman & Hynes [2024] FedCFamC2F 22
Pitman & Hynes (No 2) [2018] FamCA 1015
Pitman & Hynes (No 2) [2022] FedCFamC1F 373
Potier v Attorney-General (2015) 89 NSWLR 284
Rilak & Tsocas [2020] FamCA 49
Division: Division 2 Family Law Number of paragraphs: 66 Date of last submission: 19 February 2024 Date of hearing: On the papers Place: Sydney Counsel for the Applicant: Mr Hill of Counsel Solicitor for the Applicant: Fletch Law For the Respondent: The Respondent represented herself ORDERS
WOC 772 of 2011 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR HYNES
Applicant
AND: MS PITMAN
Respondent
ORDER MADE BY:
JUDGE LIOUMIS
DATE OF ORDER:
21 FEBRUARY 2024
ON A FINAL BASIS THE COURT ORDERS THAT:
1.Pursuant to section 102QB(2)(b) of the Family Law Act 1975 (Cth) (“the Act”), the Respondent MS PITMAN is prohibited from instituting proceedings under the Act against or in relation to the Applicant MR HYNES without first being granted leave to commence that proceeding pursuant to section 102QE of the Act.
2.All outstanding applications are dismissed and the proceedings are removed from the list of matters awaiting finalisation.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
INTRODUCTION
On 19 January 2024, I delivered judgment in this matter dismissing the Application – Contempt filed by the mother on 29 April 2022.[1] As part of the Orders made on this date, the parties were required to provide written submissions in relation to the father’s application that the mother be prohibited from instituting further proceedings without leave pursuant to s 102QB(2)(b) of the Family Law Act 1975 (Cth) (“the Act”).
[1] Pitman & Hynes [2024] FedCFamC2F 22.
The father filed his submissions in accordance with the Orders of 19 January 2024. The mother filed submissions after the time provided for in those Orders.
This application was considered in chambers on the papers.
For reasons set out below, I propose to make an order against the mother pursuant to section 102QB(2)(b) of the Act.
At the hearing of the Application – Contempt, it was the mother’s preference to be referred to as “the Applicant” or “the Respondent.” As such, the mother will be referred to as “the Respondent” and the father as “the Applicant” in accordance with the application that I am determining.
EVIDENCE
The Applicant relied on his written submissions filed 31 January 2024, and the Affidavit of Mr Hynes filed 28 September 2023.
The Respondent relied on her written submissions filed 19 February 2024.
The Court also considered the extensive litigation history of this matter, as reflected in the Court’s own records.
BRIEF BACKGROUND
The Applicant was born in 1968 and is 55 years of age.
The Respondent was born in 1967 and is 56 years of age.
The parties married in 1999 and divorced in 2013.
The parties have two children together, X born in 2003 and Y born in 2004. Despite both children having reached the age of 18, they will be referred to collectively as “the children.” The children have resided with the Applicant since 2016. An Apprehended Domestic Violence Order (“ADVO”) was put in place for the protection of the Applicant and the children from the Respondent in mid-2023. The ADVO prevents the Respondent from approaching or contacting the Applicant and children.
Proceedings were first commenced by the Applicant in 2011. The long and convoluted history of the proceedings between the parties is set out in the judgment of the Honourable Justice Baumann in Pitman & Hynes (No 2) [2018] FamCA 1015 at [2] – [6], the judgment of the Honourable Justice Harper in Pitman & Hynes (No 2) [2022] FedCFamC1F 373 at [2] – [18], and more recently my judgment in Pitman & Hynes [2024] FedCFamC2F 22 at [8] – [45]. I will not repeat the history of this matter in the detail already provided in these judgments.
The matter was listed for hearing on 5 & 6 October 2023 at the Wollongong registry to determine whether the Respondent had a prima facie case in relation to her Application – Contempt filed 29 April 2022. The Respondent was not required for cross-examination, and each party made submissions and relied on tendered documents. At the hearing, the Applicant foreshadowed in his Case Outline document and then made an oral application pursuant to section 102QB(2)(b) of the Act for the Respondent to be prohibited from instituting further proceedings without leave. Judgment was reserved in relation to the Application – Contempt filed 29 April 2022.
On 19 January 2024, judgment was delivered with written reasons. The Application – Contempt filed 29 April 2022 was dismissed, and the parties were ordered to provide written submissions within 28 days in relation to the application made by the Applicant pursuant to section 102QB(2)(b), with judgment in relation to this Application to be reserved thereafter.
The Applicant filed written submissions on 31 January 2024.
The Respondent filed written submissions on 19 February 2024, after the due date for filing specified in the Orders of 19 January 2024.
The application was determined in chambers on the papers, without any appearance required by the parties.
THE LAW
Part XIB of the Act sets out the statutory basis for the making of a “vexatious proceedings order.”
Section 102Q(1) of the Act defines “vexatious proceedings” as including:
(a) proceedings that are an abuse of the process of a court or tribunal; and
(b) proceedings instituted in a court or tribunal to harass or annoy, to cause delay or detriment, or for another wrongful purpose; and
(c) proceedings instituted or pursued in a court or tribunal without reasonable ground; and
(d) proceedings conducted in a court or tribunal in a way so as to harass or annoy, cause delay or detriment, or achieve another wrongful purpose.
Section 4 of the Act defines “proceedings” as follows:
‘proceedings’ means a proceeding in a court, whether between parties or not, and includes cross‑proceedings or an incidental proceeding in the course of or in connexion with a proceeding.
(Original emphasis)
The Court must be satisfied that a person has “frequently instituted or conducted vexatious proceedings in Australian courts or tribunals” before making any or all of the orders specified in section 102QB(2).[2] The Applicant’s application is limited to subsection 102QB(2)(b) of the Act, which permits the Court to make “an order prohibiting the person from instituting proceedings, or proceedings of a particular type, under [the] Act in a court having jurisdiction under [the] Act.” If made, such an order is a final order.[3]
[2] Family Law Act 1975 (Cth) s 102QB(1)(a).
[3] Family Law Act 1975 (Cth) s 102QB(5).
It is useful to refer to general principles that have emerged from considerations of the statutory framework analogous to section 102QB of the Act in other jurisdictions.
In Potier v Attorney-General (2015) 89 NSWLR 284 at [116] & [118], Leeming JA confirmed that the assessment of whether vexatious proceedings have been instituted or conducted “frequently” is not necessarily determined by the quantity of proceedings, but is rather a “relatively low threshold” informed by “both the quality of the vexatiousness of a proceeding, and the nature of the proceeding itself.” The Full Court agreed with these propositions in Pencious & Searle [2017] FamCAFC 210 (“Pencious & Searle”) at [74].
In Pencious & Searle at [75], the Full Court also cited with approval the general principles that apply to applications for vexatious proceedings orders as discussed by Perram J in Official Trustee in Bankruptcy v Gargan (No 2) [2009] FCA 398 (“Gargan (No 2)”):
2. …First, the making of such an order is an extreme remedy depriving its object of recourse to the enforcement of the law which is every citizen’s ordinary right. It is, therefore, not lightly to be made.
3. Secondly, the purpose of the order is not to impose condign punishment for past litigious misdeeds; it serves instead to shield both the public, whose individual members might be molested by vexatious proceedings, and the Court itself, whose limited resources and needs must be carefully managed and protected from the expense, burden and inconvenience of baseless and repetitious suits.
4. Thirdly, as might naturally be expected, such a severe power is not enlivened by the mere single occurrence of a vexatious claim. To err is human and transient lapses of judgment, even serious ones, may be found in the most reasonable of places. Instead, the power to make the order is conditional upon the litigant having commenced not only a single vexatious proceeding but also upon having commenced similar such proceedings in this Court or in other Australian courts.
5. Fourthly, the qualities of vexation to which O 21 is addressed are to be found, as the terms of r 1(1) show, in the commencement by the litigant of proceedings which lack reasonable grounds and where the litigant’s institution of such proceedings may fairly be said to be both habitual and persistent.
6. Fifthly, whether a proceeding is instituted without reasonable grounds is a different question to, although not wholly disconnected from, the inquiry into a proceeding’s legal merits. The wheat, no doubt, must be separated from the chaff but in this area the question is whether what is before the Court contains any wheat at all. Although, often enough, no great guidance is obtained by exchanging one formula of words with another, it will be usually of some assistance, limited perhaps, to ask whether the issues brought to the Court for determination are manifestly hopeless or devoid of merit. It is, in that context, important to distinguish the difficult from the ridiculous and the unlikely from the hopeless.
7. Sixthly, although the ways in which unreasonable grounds may manifest themselves are myriad, one form often to be found in the baggage of the vexatious is a failure, often a refusal, to understand the principles of finality of litigation which rescue court and litigant alike from a Samsara of past forensic encounters.
8. Seventhly, it is the related quality of repetition which underpins, in part, a need for the institution of the proceedings to deserve the appellations habitual and persistent. The litigant’s conduct will be habitual where the commencement of proceedings occurs as a matter of course when appropriate conditions for their commencement are present as was explained by Roden J in Attorney-General v Wentworth (1988) 14 NSWLR 481 at 492. That formulation may not wholly explain the litigant who commences proceedings on any occasion and without the presence of any conditions, whether appropriate or otherwise. In such cases, the idea of constant repetition driven by habit and symptomatic of an inability not to engage in the behaviour may be more useful. Persistence, on the other hand, generally suggests stubborn determination but, in the context of the vexatious, carries with it the capacity to endure failure beyond the point at which a rational person would abandon the field.
9. Eighthly, each of these notions – the want of reasonable grounds, habitual institution and persistent institution – are to be gauged objectively. But this does not mean that a litigant’s own protestation as to his or her own mental state is irrelevant; frequently enough, the vexatious are betrayed out of their own mouths. Rather, the need for objective determination protects courts from the vexatious litigant who is genuinely, but misguidedly, persuaded as to the correctness of his or her own conduct.
10. Ninthly, the power to make the order arises when proceedings commenced in the way described are found to exist. But the notion of a proceeding is a broad one including a substantive proceeding directed at the attainment of final relief and collateral applications within such a proceeding; further, it extends outside the proceeding itself and embraces appeals therefrom and applications which, whilst not made in the proceeding, are properly to be seen as collateral thereto – so much flows from the definition of proceeding in s 4 of the Federal Court of Australia Act 1976 (Cth).
11. Tenthly, other proceedings commenced before bodies which are not courts, such as the Administrative Appeals Tribunal, are not directly pertinent to the existence of the power but may nevertheless throw light on the vexatious nature of proceedings before the Court; so too, the existence of a body of such administrative litigation may have relevance to the question of whether the Court’s power to make the order, once enlivened, should be exercised.
12. Finally, once it is concluded that the Court’s power to prevent a litigant from commencing or pursuing proceedings has been enlivened, the considerations germane to the exercise of that power are unconfined. However, the factors which will be relevant are informed by the protective purpose which the order serves. Where a litigant displays insight into their previous litigious history this will, no doubt, be relevant for it will suggest – although not determine – a diminution in the risk posed to the public. On the other hand, the manner in which a litigant conducts herself in her affairs generally is also capable of throwing light on whether the commencement of further vexatious proceedings is likely. Those general affairs include the litigant’s defence to the proceedings by which the order restraining him is sought. Because of the protective nature of the jurisdiction it is also relevant to know the extent of the damage and inconvenience the litigant’s forays into the courts have caused, pecuniary or otherwise.
(Original emphasis)
These principles were again approved by Gill J in Rilak & Tsocas [2020] FamCA 49 at [29].
PROCEDURAL ISSUES
I am not permitted to make a vexatious proceedings order without providing the person to whom the order is sought against with an opportunity of being heard.[4] I am satisfied such an opportunity was provided to the Respondent by the Orders of 19 January 2024 which required each party to file and serve written submissions in relation to this application.
[4] Family Law Act 1975 (Cth) s 102QB(4).
I am satisfied that the Respondent was present when the Orders of 19 January 2024 were delivered, and I am satisfied that the Respondent has been afforded the opportunity to file submissions. The Respondent filed written submissions out of time on 19 February 2024. I have considered those submissions, even though no application was before me for an extension of time.
Rule 5.15 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) allows me to proceed with an application in the absence of parties and without an oral hearing.
Given I heard extensive submissions from the parties during the hearing for the Application – Contempt, I was satisfied that it was appropriate to deal with the Applicant’s application without requiring further hearing. Both parties consented to this course and directions were made for the filing of written submissions.
THE APPLICANT’S SUBMISSIONS
It is the Applicant’s case that the Court has grounds to make the order sought by the Applicant pursuant to section 102QB(2)(b) of the Act.
In setting out the bases to support this proposition, the Applicant, in his written submissions, addressed each of the principles spoken of by Perram J in Gargan (No 2). These submissions are summarised below.
Firstly, the Applicant submits that the making of such an order is not an extreme remedy in the circumstances of this matter’s long and convoluted history, citing my reference in the judgment of Pitman & Hynes [2024] FedCFamC2F 22 at [12] to the previous judgments of Baumann J in Pitman & Hynes (No 2) [2018] FamCA 1015 and Harper J in Pitman & Hynes (No 2) [2022] FedCFamC1F 373 as supporting evidence for this proposition.
Secondly, it is submitted that the Applicant and the Court require protection from the Respondent in circumstances where the Respondent has brought several applications, including contempt applications, against the Applicant in this Court despite the existence of Orders in the Childrens Court of Queensland and the involvement of the Queensland state welfare body in relation to the children.
In relation to the fourth principle articulated by Perram J in Gargan (No 2), the Applicant refers to [13] of Pitman & Hynes (No 2) [2022] FedCFamC1F 373:
The mother’s outstanding applications which were listed for hearing on 19 April 2021 can be summarised as follows:
(a) an Application in a Case filed 15 November 2019, seeking a stay of orders;
(b) an Application in a Case filed 17 July 2020, seeking a review of the decision of a registrar in respect of her Application – Contempt document; and
(c) an Application in a Case filed on 17 March 2021, seeking to join the children to the proceedings, and again, a stay of orders of 8 December 2018 and a stay of orders of 15 November 2019, and the issue of various subpoenas.
The Applicant emphasises in submissions that this paragraph only refers to the applications of the Respondent that were listed on one day.
Fifthly, the Applicant submits that the Respondent has demonstrated an insistence in persisting to seek to find the Applicant in contempt of court on the basis of her misinterpretation of the operation of section 69ZK of the Act. The Applicant refers to [62] & [68] of my judgment in Pitman & Hynes [2024] FedCFamC2F 22 as evidence for this submission:
[62] The Applicant has, persistently and across several jurisdictions, run her arguments as to the validity or otherwise of the competing orders. She has been unsuccessful in persuading any court that her interpretation of the law is correct.
[68] I find that the grounds of contempt brought by the Applicant are based on a fundamental and wilful misunderstanding as to the interaction between Orders made under this Act and Children’s Court Orders.
In relation to what Perram J describes in Gargan (No 2) as a refusal to understand the principles of finality of litigation, the Applicant submits that the Respondent has misused the Court’s resources by continuing to “press on” with a “parenting” application in circumstances where the Court lacked jurisdiction.[5]
[5] Written submissions filed by the Applicant on 31 January 2024 page 3.
The Applicant also submits that a perusal of the number of applications the Respondent has instituted (being approximately 80 applications) against the number of applications which would be considered “successful,” shows “a dogged determination” on her behalf.[6] The Applicant directs the Court’s attention to three events in particular, being the Queensland state welfare body’s decision to place the children with the Applicant, the Respondent’s previous application to join the children to the proceedings, and her attempt to have documents pertaining to the children to be introduced to the Application – Contempt filed 29 April 2022 while the ADVO dated mid-2023 remained in force.
[6] Written submissions filed by the Applicant on 31 January 2024 page 4.
The Applicant also argues that the Respondent is, to use the words of Perram J in Gargan (No 2), “betrayed out of [her] own mouth” by the numerous statements she has made to the Court regarding corruption of the Court and the Queensland child protection department’s intention to participate in proceedings solely to “pervert the course of justice”.[7]
[7] Written submissions filed by the Applicant on 31 January 2024 page 4; Official Trustee in Bankruptcy v Gargan (No 2) [2009] FCA 398.
In relation to Perram J’s ninth and tenth considerations in Gargan (No 2), the Applicant directs the Court’s attention to the parties’ involvement in ADVO proceedings in the New South Wales criminal courts, proceedings in relation to the children in the Childrens Court of Queensland, and interactions with Legal Aid in Tasmania.
The Applicant also submits that meeting the applications brought by the Respondent has caused him significant stress, anxiety, and financial and emotional exhaustion, particularly in circumstances where an ADVO is in place for his protection against the Respondent.
THE RESPONDENT’S SUBMISSIONS
The Respondent submits that there is no record of an Application filed by the Applicant identifying section 102QB(2)(b) of the Act.
The Respondent also submits that the representation of the Applicant pursuant to section 102NA(1) of the Act does not extend to the filing of submissions on behalf of the Applicant, nor to representing the Applicant in the Application – Contempt. The basis for this submission by the Respondent is that because there was no cross-examination required in the contempt proceedings, the solicitor and counsel for the Applicant had no standing to appear.
DISCUSSION
I have previously considered the extraordinarily lengthy history in this matter in my judgment of Pitman & Hynes [2024] FedCFamC2F 22 at [8] – [45].
I have had careful regard to the Applicant’s submissions and I accept the submissions made by the Applicant as outlined in this judgment.
Turning to the Respondent’s submissions, in relation to her first submission, it is clear in the Case Outline document filed by the Applicant on 3 October 2023 that the Applicant sought the following orders:
1.That the Applicant’s Application for Contempt filed 29 April 2022 be dismissed pursuant to section 102QB(2)(a) of the Family Law Act 1975 (Cth).
2.That the Applicant be prohibited from instituting further proceedings without leave pursuant to section 102QB(2)(b) of the Family Law Act 1975 (Cth).
3.That the Applicant pay the Respondent’s costs of this application.
4.That the Applicant’s Legal Aid debt be assigned to State Debt Recovery.
(Emphasis added)
In proceeding with this matter, the Court determined that it was appropriate to determine the Application – Contempt first, and then determine the Applicant’s application pursuant to section 102QB(2)(b) of the Act. There was no objection raised to this course during the contempt hearing.
I find that the Respondent has understood both the nature of the proceedings currently before the Court, and has been afforded procedural fairness. I made clear the process that I would follow and gave each party an opportunity to be heard. I do not accept the Respondent’s submission on this point.
In relation to the Respondent’s argument regarding section 102NA(1) of the Act, this argument has been raised previously by the Respondent. In Pitman & Hynes [2021] FamCA 300, the Honourable Justice Harper said at [25] – [30]:
[25] The mother’s argument appears to be to the effect that, by reason of the order for the application of section 102NA being made by reference to specific hearing dates in the future and only in relation to cross-examination, it was illegal for me to engage with any representation or lawyers of the father in other circumstances, including in relation to the applications before me today.
[26] The mother appears to labour under the misapprehension that because it is the Court’s role to either determine the mandatory application of section 102NA(2) or exercise a discretion to make an order that it apply that, therefore, the Court somehow controls the representation thereby afforded to a party in the proceedings. The basis upon which the father obtains representation for his case in this Court is not a matter in which this Court would generally become involved and certainly nothing pointed to by the mother suggests that there is any basis for me to question, or refuse to engage with, the father’s representation that appears for him.
[27] The mother seemed to make the remarkable contention that in fact it was somehow a perversion of the course of justice for the father to be allowed to have representation before me, because her view was that the way the funding scheme for representation to support orders section under [sic] 102NA should be conducted or administered was to prevent such representation being available.
[28] The mother, in submissions made a number of different ways, conceded the father was entitled to have representation or appear for himself. What she contends he is not allowed to do is take the advantage of a funding scheme which has been put in place to support section 102NA orders and in this specific case, her contention appears to be that, by reason of the adjournment of the hearing on 18 January 2021, it is illegal for him to continue to be represented by lawyers who have been engaged through the scheme supporting section 102NA orders.
[29] Those contentions are not ones which I consider to have any merit. As I put to the mother in the course of submissions, they appeared to confuse the role of the Court and the role of those who administer the funding schemes to support the operation of section 102NA. The assertion which appears to be made that, by engaging with lawyers representing the father today or by adjourning the proceedings on 18 January 2021, I somehow violated my judicial oath, is something that I reject.
[30] It became clear during the course of submissions which the mother made a number of times during the course of delivery of this judgment that she was under the impression that the scheme or program of funding which supported the operation of section 102NA was somehow under the control or administered by the Court or by me. That misapprehension seems to lie at the heart of the various assertions she has made and it is, of course, utterly incorrect.
I agree with Harper J that the Respondent’s contentions in relation to section 102NA of the Act have no merit. That she has persisted with this argument despite the findings of Harper J is in my view exemplary as to why the order sought by the Applicant pursuant to section 102QB(2)(b) is necessary in this matter.
In this matter, the children are now 19 and 20 years of age. That the Respondent has persisted in engaging in proceedings relating to the children I find to be an abuse of process. The Respondent’s submissions fail to engage at all with the gravitas of the application before the Court, and instead focus on irrelevant issues where the Respondent’s position has been found to be erroneous.
I find that the Respondent’s submissions are an example of the lack of coherent evidence that the Respondent files in order to pursue her contentions.
I accept that answering the Respondent’s contentions and applications is onerous and oppressive for the Applicant. Referring to the Application – Contempt filed by the Respondent on 29 April 2022, the Applicant’s evidence is that:
This latest application is the latest in a series of approximately eighty (80) applications brought by the Applicant to date, comprising of approximately forty four (44) in the Childrens’ Court of Queensland and approximately thirty six (36) in this Honourable Court in the form of applications, stays, appeals etc. For over eight (8) years I have been constantly attending to applications, stays, appeals etc. and this has taken considerable toll on my resources, wellbeing and time. Further, this has resulted in accumulated leave from work being perpetually used, thus adding to the stress and anxiety associated with constantly having to appear before the courts.
…
These actions have also affected both children, who are now young adults and have not been immune from Court actions. We have been forced to seek continual NSW police protection from the mother in the form of another ADVO naming myself and the kids in need of protection with the ADVO coming into operation is [sic] [mid] 2023 and the application number is […].
I accept this evidence of the Applicant. I do so in circumstances where in 2018, a Family Report by Ms K recorded at [86]:
I do not understand [Ms Pitman]’s desperation to continue this Court case or indeed any others that are presently on the books, so to speak. She speaks of seeking ‘justice’ for her children. Whatever objective she is striving to reach, her actions in continuing endless challenges are definitely achieving ongoing trauma for her children.
In the Application – Contempt, the Respondent subpoenaed medical counselling records of her now adult children. I did not permit access to those records. The seeking of this information is invasive and inappropriate. That the Respondent had no insight as to the impact her application had for her children is demonstrative that little has changed since the Family Report prepared in 2018.
In support of the Application – Contempt, the Respondent also filed an Affidavit on 14 March 2022 containing an Application in a Proceeding which sought to issue subpoenas against 22 people including police officers, judicial officers, and officers of the Department of Community Services Queensland. While that application did not proceed, I find it demonstrates the ill-considered nature of the applications brought by the Respondent, and that the Respondent’s actions are not grounded in a realistic assessment of her case.
The Respondent also sought at the Application – Contempt hearing to directly subpoena the child X. While the subpoena was not permitted to be filed, I find that this again demonstrates that the Respondent’s conduct in these proceedings has been harassing, abusive and vexatious.
I find that the Respondent has filed frequent applications, and that when I consider the context of those applications, they have sought to re-litigate issues including:
(a)Action taken by the Queensland Department of Communities, Child Safety and Disability Services (as it was then named);
(b)Proceedings which were heard in the Childrens Court of Queensland;
(c)Orders made in the Childrens Court of Queensland;
(d)Orders made by this Court;
(e)Alleged constitutional issues;
(f)Subpoena applications; and
(g)Arguments in relation to section 102NA of the Act that have been the subject of previous orders and findings.
It was clear in her Application – Contempt that the Respondent sought to challenge findings of this Court and the Childrens Court of Queensland. Those findings have not been successfully challenged through appeal by the Respondent.
I am satisfied that in this matter, the Respondent has pursued applications which have had no merit and no prospects of success. The Respondent has sought to initiate proceedings and has sought to re-litigate issues which have already been resolved by findings of the court. The Respondent has continued to do so even when the children have attained the age of 18 years. The clearest example of this is the Respondent’s application in March 2022 for subpoenas to be issued, as discussed at paragraph [57] of my judgment.
In this matter, I am satisfied that an order pursuant to section 102QB(2)(b) of the Act would shield not just the Applicant and the now adult children from further proceedings, but also this Court from applications which are baseless.
I find that the Respondent continued with the contempt proceedings even after they had been initially dismissed, and that such proceedings were an abuse of process and brought without reasonable grounds, and that there was no evidence in support of the Respondent’s contentions of contempt.
I also had the opportunity to observe the Respondent in the Application – Contempt filed 29 April 2022, and I found that the Respondent had a determined focus to harass and annoy the Applicant. The Respondent remained focused on her arguments as to the legitimacy of orders made by the Childrens Court of Queensland, even though this issue had been previously subject to extensive litigation and orders.
In the circumstances of having observed and heard at length from the Respondent, I am satisfied that the order sought by the Applicant pursuant to section 102QB(2)(b) of the Act is necessary in this matter.
CONCLUSION
I make the following orders.
I certify that the preceding sixty-six (66) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Lioumis. Associate:
Dated: 21 February 2024
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