FAMILY COURT OF AUSTRALIA
| RILAK & TSOCAS | [2020] FamCA 49 |
| FAMILY LAW – PRACTICE AND PROCEDURE – Application by the Father for a vexatious proceedings order pursuant to s 102QB of the Family Law Act 1975 (Cth) – where the Mother has frequently instituted or conducted vexatious proceedings – Final order made prohibiting the Mother from commencing proceedings under the Act against the Father without first obtaining leave of the Court. FAMILY LAW – CHILDREN – Mother’s application to vary existing final parenting orders – Rice v Asplund – threshold issue – whether there has been material change in circumstances or material new factor – finding that there is no material change in circumstances or material new factor. |
| Family Law Act 1975 (Cth) ss 102Q, 102QB |
| Cannon & Acres [2014] FamCA 104 Marsden v Winch (2009) 42 Fam LR 1 Official Trustee in Bankruptcy v Gargan (No 2) [2009] FCA 398 Pencious & Searle[2017] FamCAFC 210 Rice v Asplund (1979) FLC 90-725 |
| APPLICANT: | Ms Rilak |
| RESPONDENT: | Mr Tsocas |
| FILE NUMBER: | SYC | 2062 | of | 2010 |
| DATE DELIVERED: | 4 February 2020 |
| PLACE DELIVERED: | Canberra |
| PLACE HEARD: | Canberra |
| JUDGMENT OF: | Gill J |
| HEARING DATE: | 24 January 2019; 21 May 2019; 11 July 2019; 21 August 2019 |
REPRESENTATION
| SOLICITOR FOR THE APPLICANT: | Self-represented |
| COUNSEL FOR THE RESPONDENT: | Mr Levy |
| SOLICITOR FOR THE RESPONDENT: | Watts McCray |
Orders
That, pursuant to s 102QB(2)(a) of the Family Law Act 1975, all extant applications filed by the Applicant Mother, Ms Rilak, be and hereby are dismissed.
That, pursuant to s 102QB(2)(b) of the Family Law Act 1975, the Applicant Mother, Ms Rilak, born … 1967, be and hereby is prohibited from instituting proceedings under the Family Law Act 1975 in relation to the child B, born … 2010.
That, pursuant to s 102QB(2) of the Family Law Act 1975, the Applicant Mother, Ms Rilak, be and hereby is prohibited from instituting proceedings under the Family Law Act 1975 in relation to the Respondent Father, Mr Tsocas, born … 1957.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Rilak & Tsocas has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT CANBERRA |
FILE NUMBER: SYC 2062 of 2010
| Ms Rilak |
Applicant
And
| Mr Tsocas |
Respondent
REASONS FOR JUDGMENT
Introduction
This matter involves proceedings regarding the parties’ child, B, being proceedings conducted in the shadow of Final Orders made by the Honourable Justice Loughnan on 20 November 2015 (‘the Final Orders’). Those Orders provided, in general terms, for B to live with her Father, the Respondent, and to spend supervised time with her Mother, the Applicant.
Those Orders were the subject of an unsuccessful appeal by the Mother to the Full Court and the High Court.
The Mother is not spending time with B in accordance with the Orders. She is spending no time with B.
The Mother has said to the Court in the current proceedings that she will not tolerate supervised time with B, and that she will not see B on a supervised basis. She has said that she should be able to bring applications to change the Orders, and that if the Court does not do something about the Orders it will bring the administration of justice into disrepute.
On 9 October 2017 in respect of appeal proceedings EAA60 of 2017, the Mother submitted to Ainslie-Wallace J:[1]
however, by dismissing my application she (the judge at first instance) again added to the continuation of our court proceedings, as it will never end until there is a judge that can just look at the facts (rather than the powerful law firm representing the father) and the father’s conduct and make a just and fair judgement.
[1] Respondent’s Affidavit at [33]
When before the High Court on 23 May 2018 the Mother said:
so this is a train wreck that is going for eight years and it could go another eight years if the High Court does not provide directions to the Family Court.
The Applicant has, by her Initiating Application filed 15 November 2017, recommenced the proceedings. A number of applications have followed this recommencement of proceedings in the nature of contravention proceedings and interlocutory applications. The Mother has been the author of these various proceedings, the remainders of which are set out below.
Although a number of the Mother’s extant applications were listed for hearing on 24 January 2019, by a Response filed on 21 January 2019 the Father sought relief from those applications by means of a vexatious litigant declaration pursuant to s 102QB of the Family Law Act 1975 (Cth) (‘the Act’). Alternatively, the Father sought by the application of the principles set out in Rice v Asplund the ending of the Mother’s Initiating Application[2] (together to be referred to as ‘the Application’).
[2] Mother’s Initiating Application filed 15 November 2017
That Application was initially heard as an Interlocutory Application on 24 January 2019 following which the decision of the matter was reserved. A short time thereafter the matter was relisted on 31 January 2019, at which time the parties were advised that the matter could not be dealt with as an interlocutory application, given the terms of s 102QB, and were asked to advise the Court of the appropriate steps that would be required to ensure that the matter was heard on a final basis in a procedurally fair manner.
The matter was then relisted and a hearing took place on 21 May 2019, 11 July 2019 and 21 August 2019. The bulk of this time was spent in cross-examination of the Father by the Mother, the matter being extended over a number of days to accommodate the Mother’s cross-examination being pursued for a significantly longer period than she had initially indicated was necessary. On the last of these days the Father made submissions in support of his application and, with her consent, the Mother was allowed to make written submissions.
Material Relied Upon
The Applicant Mother was permitted to rely upon the following material:
a)Initiating Application, filed 15 November 2017;
b)Application – Contravention, filed 15 November 2017;
c)Applicant Affidavit, filed 15 November 2017;
d)Application, filed 27 June 2018;
e)Applicant Affidavit, filed 27 June 2018;
f)Applicant Affidavit, filed 10 September 2018;
g)Application, filed 31 October 2018; and
h)Applicant Affidavit, filed 31 October 2018.
The Respondent Father relied upon the following material:
a)Application – Response, filed 21 January 2019; and
b)Respondent Affidavit, filed 21 January 2019.
Matters the subject of the application
The Mother’s applications that were on foot at the time of the Application were:
a)An Initiating Application filed 15 November 2017. This application sought a change to the parenting arrangements for B on both an interim and final basis, so that the Mother would have sole parental responsibility and that B would live with the Mother. On a final basis, the Mother sought that there be electronic contact between B and the Father, a restraint on the Father approaching the child and restraint on denigration. On an interim basis, the Mother sought an urgent hearing, weekend time for herself with B, that B spend school holidays with the Mother and special occasions and have electronic contact with her;
b)An Application for Contravention filed 15 November 2017. The Mother alleged that the Father had contravened orders relating to telephone contact, health updates, payments to the Mother, information regarding the Father’s address and not objecting to the Mother speaking her native language to B, on a total of 345 times, all of which she set out in her application. This was dealt with on 18 May 2018 and 27 August 2018, in relation to a select number of the alleged contraventions, dismissing those particular contraventions and staying the balance of counts pending the lodgement of security for costs. No security has been lodged;
c)An Application filed 1 June 2018. This sought the recusal of Senior Registrar Campbell and that the proceedings be referred to a Duty Registrar. This application was subsequently dismissed by consent (as discussed below);
d)An Application in a Case filed 27 June 2018. This application sought that a family relationships professional be appointed to assess B’s safety and wellbeing as a matter of urgency (the Mother seeking that the proceedings be listed with as little as 48 hours’ notice), that the professional be nominated by the Mother and that the Court recognise the need for the child to be reconnected with the Mother;
e)An Application in a Case filed 31 October 2018, amended by an Amended Application in a Case filed 23 January 2019. This dealt primarily with parenting arrangements for B, seeking that the Court recognise the need for the child to reconnect with the Mother, that the Orders of 13 November 2015 be discharged, that B spend time with the Mother twice weekly between December 2018 and January 2019, that the Mother and B attend on a specific psychologist (with fees to be paid by the Father) and seeking unsupervised contact between the Mother and child in January 2019 as well as on special occasions.
The Father, by his Amended Response filed 21 January 2019 sought:
a)That the Applicant Mother’s Applications in a Case filed 15 November 2017, 1 June 2018, 27 June 2018, 14 August 2018 and 31 October 2018 be dismissed (it should be noted that the Mother’s application of 14 August 2018 had been finalised by the time of the application);
b)That pursuant to Section 102QB of the Family Law Act, that the Applicant Mother be prohibited from instituting proceedings under this Act in a Court having jurisdiction under this Act;
c)That in the alternative to Order 2 above, that the Applicant Mother be required to lodge the sum of $10,000 into the trust account of Watts McCray Lawyers prior to instituting proceedings under this Act in a court having jurisdiction under this Act; and
d)That the Applicant Mother pay the Respondent Father’s Costs of and incidental to these applications on an indemnity basis.
By Orders 1, 2, 3 and in the alternative 1 of his minute of Orders filed 20 May 2019 the Father clarified the orders sought:
1.That, pursuant to section 102QB(2)(a) of the Family Law Act 1975, all extant applications filed by the applicant mother, Ms Rilak, be and hereby are dismissed.
2.That, pursuant to section 102QB(2)(b) of the Family Law Act 1975, the applicant mother, Ms Rilak born in 1967, be and hereby is prohibited from instituting proceedings under the Family Law Act 1975 in relation to the child B born in 2010.
3.That, pursuant to section 102QB(2) of the Family Law Act 1975, the applicant mother, Ms Rilak, be and hereby is prohibited from instituting proceedings under the Family Law Act 1975 in relation to the respondent father Mr Tsocas born in 1957.
Alternative 1: That all extant Initiating Applications and Applications in a Case filed by the mother be and hereby are dismissed.
The Mother opposes the Father’s applications.
In her written submissions, the Mother sought to draw a distinction (for the first time) between the Father’s application in respect of the proceedings then on foot, as opposed to future proceedings. She asserted that:
The father asks for an order prohibiting further proceedings from being instituted under the FLA, or that a security for costs to the tune of $10,000 should be demanded from the Mother if she does so. He is not asking for an order under (s102QB(2)(a)) and one should not be entertained, as the s102QB application is purely adversarial in nature, preventing the Court from making an order under (a) on its own motion.
Given the minute of orders sought by the Father, this submission by the Mother is somewhat disingenuous. Even without that minute, the position put by the Mother is not sustainable.
For clarity, s 102QB(2)(a) relates to orders concerning proceedings that have already been instituted. However, the Mother’s submission that the Father’s Response did not seek such relief is misplaced. The first of the orders sought by the Father seeks the relief of dismissal of the extant proceedings. Such relief is offered by s 102QB(2)(a) as well as the principle contained in Rice v Asplund.[3]
[3](1979) FLC 90-725.
It should also be observed that the proceedings were conducted throughout on the basis that the vexatious litigant application was directed toward the current proceedings as well as future proceedings. This is illustrated by reference to earlier written submissions[4] provided by the Mother wherein she said:
10. I have argued that there is a real and appreciable risk that my child is being harmed under the current parenting arrangements, and that action should be taken to assess, and, if required, to resolve the situation. If I am prevented by a s 102QB order from arguing this issue, or similar issues in the future, then my child’s welfare situation will be unsupervised by the court, thus undermining the courts claim to have been able to make an alleged protective order in the first place…
[4] Mother’s written submissions filed 19 February 2019.
In the face of such submissions, it cannot be thought that the Mother was labouring under the misapprehension that the first of the orders sought by the Father was not reliant upon s 102QB.
Further, at all stages the dismissal under s 102QB was sought as the primary relief, with dismissal on the basis of Rice v Asplund constituting a secondary position.
It is appropriate to deal with the issues raised in this matter on a sequential basis, by dealing with the s 102QB aspects before the Rice v Asplund argument. While there is some degree of overlap between the two, the answering of the s 102QB aspect is likely to mean that the Rice v Asplund argument does not require further consideration (or may be dealt with briefly), whilst an answer to the Rice v Asplund argument does not deal with the s 102QB aspects of the case.
Principles in relation to an application pursuant to section 102QB of the Act
Before embarking upon an analysis of the history of the litigation in this matter following the handing down of final orders, it is sensible to examine the principles that will require application to that history.
Section 102QB is in the following terms:
(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.
An inclusive definition for the term “vexatious proceedings” is set out at s 102Q as follows:
vexatious proceedings includes:
(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.
Two key ingredients are to be established before the Court considers exercising the discretion to make a vexatious proceedings order. They are that vexatious proceedings have been instituted or conducted and that this has occurred frequently.
The approach to this compound issue taken in Cannon & Acres[5] and in Pencious & Searle[6] involved a first step of individually analysing each of the proceedings in order to establish which could be described as vexatious and then secondly determining whether or not this had happened frequently.
In dealing with what is meant by vexatious, and in dealing with a s 102QB application, the Full Court in Pencious & Searle[7] adopted what had been said by Perram J in Official Trustee in Bankruptcy v Gargan (No 2) [2009] FCA 398:
In an often quoted passage in Official Trustee in Bankruptcy v Gargan (No 2) [2009] FCA 398 Perram J spoke of the general principles that apply to applications for vexatious proceedings orders. His Honour said:
A comprehensive explanation of what makes a proceeding vexatious is difficult to proffer for the boundary between the persistent and over-zealous on the one hand, and the vexatious on the other, may at times be indistinct. However, the following principles are, at least, well-established.
First, the making of such an order is an extreme remedy depriving its object of recourse to the enforcement of the law which is every citizen’s ordinary right. It is, therefore, not lightly to be made.
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.
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.
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.
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.
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[8] of past forensic encounters.
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.
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.
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).
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.
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)
[8] An endless cycle of birth death and rebirth
It may be drawn from here that the protective nature of the provision, and the severe consequences of depriving a person of access to a court remain central matters to be borne in mind in considering the operation of the provision. These require a careful consideration of what is asserted to be vexatious in the light of the inclusive, non-exhaustive statutory definition.
What also emerges is that neither the statutory provision at s 102Q(a), (c) or (d), nor the explanation given by Perram J require, as a necessary element, a subjective intention or knowledge that the proceedings
a)Abuse the process of a court or tribunal;
b)Are without reasonable grounds;
c)Are conducted in a way so as to harass or annoy, cause delay or detriment or achieve another wrongful purpose.
This is consistent with the protective nature of the power.
However, subjective intention remains relevant (s 102Q(b)) where proceedings are conducted to harass or annoy, to cause delay or detriment, or for another wrongful purpose.
The Full Court in Pencious & Searle also examined the concept of “frequently”:
It is useful at this stage to refer to some general principles that have emerged from considerations of the sections in other jurisdictions analogous to s102QB.
In Potier v Attorney General (NSW) (2015) 89 NSWLR 284 Leeming JA, with the concurrence of Basten and Meagher JJA, discussed what is meant by “frequently” in the context of vexatious proceedings:
The power to make an order under the Vexatious Proceedings Act is conditioned upon a court being satisfied that the person has “frequently” instituted or conducted vexatious proceedings in Australia. The meaning of a word like “frequently” turns very much on its context; that is no different from many other protean words (such as “adversely affect” and “mistake”: cf Independent Commission Against Corruption v Cunneen [2015] HCA 14 at [2] and [57] and CTM v The Queen [2008] HCA 25; 236 CLR 440 at [7]). It is not possible to articulate a precise test. However, the following two matters relevant to its construction for the purposes of this appeal may be noted. Each supports the conclusion that “frequently” is a relatively low threshold.
First, the change in language from the predecessor provision (s 84 of the Supreme Court Act) of “habitually and persistently” was deliberate, and plainly lowered the threshold condition.
Secondly, there are vexatious proceedings and vexatious proceedings. It is one thing to file urgent appeals or applications for judicial review which cause substantial disruption to courts and other litigants and participants in the legal system (for example, the adjournment of a trial), or to make serious allegations of fraud unfounded in the evidence. It is quite different to encounter some poorly known legal doctrine which denies reasonable grounds to the proceedings or renders them technically an abuse of process, or to file a series of applications for the annulment of decisions of magistrates (I have in mind the nine applications for annulment made by Mr Viavattene all listed and determined on the same day: see Viavattene v Attorney General (NSW) [2015] NSWCA 44 at [70]). That is to say, both the quality of the vexatiousness of a proceeding, and the nature of the proceeding itself, inform the assessment of frequency.
I can readily envisage circumstances where a litigant commences only a handful of large proceedings, making serious allegations without any proper basis, but which occupy a significant amount of time and resources of parties and the courts, which could satisfy the statutory test of “frequently”. This illustrates the fact that “[t]he issue posed by the statutory term “frequently” is not to be assessed merely by an arithmetic calculation”: Viavattene at [49].
Each of those considerations favour “frequently” being a relatively low threshold.
The parties exchanged submissions on whether the proportion of proceedings instituted by a person being found to be vexatious was relevant to whether the threshold condition is satisfied. I do not think that it is. The statute requires the Court to be satisfied that a person has instituted or conducted vexatious proceedings frequently; whether the proportion of all proceedings instituted or conducted by the person which are vexatious is high or low does not bear upon that question. By the same token, suppose the question is whether a traveller will frequently encounter rabid dogs in a particular area. The answer does not turn on how many non-rabid dogs the traveller is likely to encounter in the area.
That said, the proportion of proceedings which are vexatious is highly relevant to the exercise of discretion to make an order, if the threshold condition is satisfied. For an order may bear upon all proceedings instituted or conducted by a person, and it will be essential for the Court to bear in mind its operation on existing and likely future proceedings, particularly those which are not vexatious.
…
We agree with those propositions.
It may be drawn from this passage that the concept of “frequently” is reliant upon context, may be described as a low threshold, and involves consideration of the “quality of the vexatiousness” to determine whether or not the test of “frequently” is met.
The vexatious litigant application
The Father’s case to have the Mother declared a vexatious litigant pursuant to s 102QB of the Act is reliant upon the history of litigation following the making of Final Orders by Loughnan J in November 2015. It is necessary to set out that history in some detail, noting that there have been further aspects to the litigation since the commencement of the s 102QB application.
In relying upon that history, the Father refined the list of the incidents relied upon at the hearing of the matter, identifying which incidents were to be characterised as vexatious,[9] when seen within the context of the Mother’s conduct as a whole.
[9] See the incidents at the Father’s affidavit filed 21 January 2019, [23] (e), (g), (h), (p), (q), (r), (s), (u), (v), (w), (x), (y), (aa), (bb), (cc), (dd), (ee), (ff).
The Father still, however, relied upon the broader litigation history as setting the context for those particular incidents, in particular because of the context of frequent litigation that it presented.
The history of litigation since the making of the final orders
At [23] of his affidavit the Father set out the applications made by the Mother since the making of the Final Orders. These include not only applications made in the Family Court but also in the High Court. He also set out the manner in which those applications have been dealt with. A number of other applications have been made since the Father prepared his affidavit, primarily relating to a notice to admit facts and a notice to produce. The Father was excused from compliance with each of these.
Despite the description at [9] of her affidavit,[10] complaining of “over a hundred inaccuracies and misleading statements” in the Father’s affidavit, the Mother did not appear to dispute what was set out at [23] regarding the history of the litigation, other than to say that the list was misleading in two respects. The first was that the Father has not identified the nature of the applications at [23(h), (i) or (u)]. The second was that the applications identified at [23(aa) and either (w) or (x)] referred to the dismissal of proceedings where she alleged that the first listing of the applications had occurred after the subject matter of the application had already taken place, rendering the later hearing of the matter pointless.
[10] Mother’s affidavit filed 23 January 2019.
Paragraph 23 and thereby the litigation history is set out below. The relevant portions of the Father’s affidavit have been extracted under each of the headings, along with the paragraph reference and his description of the proceedings replicated in italics. The Mother, in her written submissions, addressed many of these litigation events. Her submissions are extracted and appear underlined.
It should be noted that a considerable portion of [23] is a recital of previous proceedings and the outcomes and reasons given in relation to those proceedings. Although the parties did not address me in relation to the general rule at s 91 of the Evidence Act 1995 that renders inadmissible evidence of judgments to prove a fact in issue in that proceeding, it appears that such is admissible to prove the underlying facts either insofar as they are able to do so as an issue estoppel (per s 93 of the Evidence Act 1995) between the parties or, alternately, by operation of s 102QB(6).
As might be anticipated in a statutory provision that is dealing directly with the conduct and resolution of previous proceedings in determining whether to make an order against a party, s 102QB(6) allows a court to 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).
The identified proceedings occurring since the final hearing
[23a] On 17 November 2015, [Ms Rilak] filed an Application in a Case. This Application resulted in the 20 November 2015 Orders and the 4 December 2015 Orders. These Orders related to the operation of the Orders of Loughnan J pending appeal.
The Father did not rely on this as a specific instance of vexatious litigation. The Mother was successful in this application.
[23b] On 17 November 2015, [Ms Rilak] filed an Application in an Appeal in relation to the final Orders. On 27 February 2017, her Appeal was dismissed with costs. On 31 October 2017, a Cost Assessment Order was made for [Ms Rilak] to pay to me the sum of $16,700. [Ms Rilak] has not paid any of that amount to me. The Appeal judgement at paragraph 166 reads: “We found no merit in any of the grounds for appeal.”
The Father did not rely on this as a specific instance of vexatious litigation.
[23c] On 1 March 2016, [Ms Rilak] filed an Application in an Appeal which was subsequently dismissed.
The Father did not rely on this as a specific instance of vexatious litigation.
On 4 March 2016, [Ms Rilak] commenced bankruptcy proceedings against me [23d].
The Father did not rely on this as a specific instance of vexatious litigation. The Mother was successful in those proceedings.
[23e] On 17 March 2016, [Ms Rilak] filed a Contravention Application. The matter came before the court on 19 July 2016. [Ms Rilak] left the court prior to the matter being concluded. On or about 22 July 2016, Her Honour Justice Rees delivered judgement, dismissing [Ms Rilak]’s Contravention Application. The Judgement at paragraph 10 reads: “The mother was wholly unsuccessful in her application, combined with the fact that she withheld evidence would have demonstrated that, in relation to two of her allegations, there was evidence that disproved her allegations of contravention”.
[23e] Regarding the Contravention Application filed 17 March 2016 and dismissed on or about 22 July 2016, a cost order for $5,000 was subsequently made against [Ms Rilak] and in my favour. [Ms Rilak] has not paid the amount owed to me pursuant to that cost order.
The Father relies on both of these aspects of the contravention proceedings as examples of vexatious proceedings.
In relation to this matter, the Mother’s written submissions stated that “Rees J found that the mother had established a prima facie case on charges 5 and 6 (22 July 2016 Judgment at [48]) and refused to grant Bill a summary dismissal made on oral application (Judgment at [8]). Statutory criteria (a) - (d) fail. It cannot count.”[11]
[11] Mother’s written submissions filed 12 September 2019, [3].
While the finding of prima facie case in respect of two counts, and the finding of reasonable excuse means that the pursuit of those counts should not be considered to be without reasonable grounds, the lack of prima facie case supports the conclusion that four of the applications were made without reasonable grounds.
Significantly, a feature of the hearing of these matters was that the Mother left the court part way through the hearing and did not return.
Combined with the finding of withholding of information that disproved two of the allegations the proceedings were, at least in part, an abuse of process, at least in part without reasonable grounds, and together conducted in a way so as to harass or annoy and cause delay or detriment. This is emphasised by the failure to comply with the costs order that flowed from the proceedings.
These proceedings should be characterised as vexatious.
[23f] On 19 April 2016, [Ms Rilak] filed an Application for Extension of Time in respect of her Appeal. I consented to the extension.
The Father did not rely on this as a specific instance of vexatious litigation. The Mother was successful in this application.
[25a] On 21 May 2016, [Ms Rilak] walked out of the courtroom and did not return when the matter was before His Honour Justice Loughnan for final hearing.
The Mother responded to this by exhibit M1 AR 3, where reference is made to the Mother by the trial judge on that day. The Mother however accepted that she had walked out of the proceedings on the following day. That is, the Father identified the wrong day.
The Father does not rely on this as a specific example of vexatious litigation.
[23g] On 15 June 2016, [Ms Rilak] filed an Application in a Case seeking, inter alia, an urgent listing of her Contravention Application (the Rees J matter referred to above). The matter was heard by Senior Registrar Campbell, in chambers. [Ms Rilak]’s Application was struck out. Registrar Campbell published his orders of 28 June 2016 and short reasons for judgement.
This matter was relied upon by the Father as an example of vexatious litigation. The Mother’s written submissions responded that “seeking expedition of Contravention hearing due to barrister being overseas - the application was sensible. Statutory criteria (a) - (d) (of s102Q) fail. It cannot count.”[12]
[12] Mother’s written submissions filed 12 September 2019, [4].
I am unable to determine that this instance falls within any of the categories at s 102Q or may be otherwise described as vexatious.
[23h] On 4 July 2016, [Ms Rilak] filed an Application in a Case. That Application was dismissed by Justice Stevenson in Chambers on 7 July 2016.
This matter was relied upon by the Father as an example of vexatious litigation. The Mother complained that the Father had failed to set out the nature of the application that was dismissed.
The Mother’s written submissions stated that “for review of registrar’s decision not to expedite contravention hearing to accommodate travelling barrister – the application was sensible. Statutory criteria (a) - (d) fail. It cannot count.”[13] The proceedings before Stevenson J were a review of a determination by Registrar Campbell to reject the Mother’s application for parenting orders. Justice Stevenson dismissed the application, finding that the application sought to be filed was incompetent.
[13] Mother’s written submissions filed 12 September 2019, [5].
This finding supports a conclusion that the application was made without reasonable grounds, and was vexatious in the manner described at s 102Q(c).
[25b] On 19 July 2017, when [Ms Rilak]'s Contravention Application was being heard by Her Honour Justice Rees, [Ms Rilak] walked out of the courtroom and did not return after my barrister indicated that he wished to cross examine her. This is referred to in Her Honour's judgment of 22 July 2018.
The Mother made no response to this allegation.
The Father did not rely upon this incident as a specific example of vexatious litigation.
[23i] On 22 September 2016, [Ms Rilak] filed an Application in an Appeal. The matter was ultimately heard when the matter came before the Full Court in respect of [Ms Rilak]’s appeal against the final orders, and dismissed on 27 February 2017.
The Mother made no response to this.
The Father did not rely upon this incident as a specific example of vexatious litigation.
[23j] On 17 October 2016, [Ms Rilak] filed an Application in an Appeal. That application was allowed on 20 October 2016.
This application sought an extension of time to file documents including a Notice of appeal, application to adduce further evidence and other interim orders.
The Father accepted that the Mother was successful in this application and did not reply on this incident as a specific instance of vexatious litigation.
[23k] On 11 November 2016, [Ms Rilak] filed an Application in a Case, seeking orders, inter alia, that Justice Rees recuse herself from the further dealing of the contravention and that in the alternative, [Ms Rilak] have leave to file written submissions regarding my claim for costs. The Application in a Case was subsequently listed before Senior Registrar Campbell on 23 January 2017 and the court portal shows that Senior Registrar Campbell reviewed the matter in chambers and that the outcome of the application was simply recorded as “discontinued”.
The Father did not rely upon this incident as a specific example of vexatious litigation.
[23l] On 29 December 2016 the Mother lodged an Application in an Appeal. This was rejected by the Appeals Registrar pursuant to Rule 26.10(1)(e) of the Family Law Rules, as shown by an email annexed to the Mother’s Application in a Case filed 9 January 2017.
The Father did not rely upon this incident as a specific example of vexatious litigation.
[23m] On 9 January 2017, [Ms Rilak] filed an Application in an Appeal. Judgement in the Appeal was delivered on 27 February 2017 and the outcome of this Application in an Appeal is recorded as "discontinued" on the Court portal.
The Father did not rely upon this incident as a specific example of vexatious litigation.
[23n] On 18 January 2017, [Ms Rilak] filed an Application in an Appeal. The court portal shows that the application was "dismissed" on 25 January 2017.
The Father did not rely upon this incident as an example of vexatious litigation.
[23o] On 24 April 2017, [Ms Rilak] filed a Notice Disputing Itemised Costs Account. There were Assessment conferences before Registrar McNamara on 20 June 2017, 5 September 2017 and 26 September 2017. A notice of the preliminary assessment of the itemised costs account was issued on 26 September 2017. On 31 October 2017, Orders were made by Registrar McNamara in Chambers. [Ms Rilak] has not paid these Costs to me.
The Father did not rely upon this incident as a specific example of vexatious litigation.
[23p] On 26 May 2017, [Ms Rilak] filed an Application for special leave to appeal to the High Court. That Application was dismissed.
This matter was relied upon by the Father as a specific example of vexatious litigation. As indicated to the parties at the hearing, the mere dismissal of an Application for Special Leave does not speak to the application having been vexatious.
[23q] On 5 June 2017, [Ms Rilak] filed a Notice of Appeal in relation to the cost order made in relation to the contravention proceedings. That was subsequently dismissed by orders of Her Honour Justice Ainslie Wallace on 13 October 2017. I filed an Application in an Appeal seeking an order that the appeal be dismissed or that in the alternative, [Ms Rilak] provide security for my costs of the appeal. Orders were made [Ms Rilak] to provide security for costs to my solicitors regarding the 5 June 2017 Notice of Appeal; judgment of her Honour Justice Ainslie-Wallace on 13 October 2017.
This was a matter relied upon by the Father as a specific example of vexatious litigation.
The Mother’s written submissions stated that “for appeal of costs order made in contravention application - the father’s concurrent application for the appeal to be found vexatious or abuse of process (Application in an Appeal filed 28 July 2017) was dismissed. It cannot be found to be vexatious.”[14]
[14] Mother’s written submissions filed 12 September 2019, [6].
Despite the assertions of the Mother, no part of the judgment by Ainslie-Wallace J deals with the refusal of a s 102QB application by the Father.
It was an occasion on which the Mother failed to appear to prosecute her application. The Mother did not appear to contest that she did not appear on that day.
In fact, Ainslie-Wallace J did not dismiss the appeal, although she dismissed the ancillary applications made by the Mother for adjournment and that Ainslie-Wallace J recuse herself and a number of other judges. The application for recusal appears to have been completely unmeritorious. This supports a conclusion that the application was made without reasonable grounds. In relation to the appeal proper, Ainslie-Wallace J made an order for security for costs against the Mother, which ultimately had the effect of staying the appeal. In determining such a course of action, Ainslie-Wallace J observed that the appeal was “highly likely to fail.” As a tentative view expressed by Ainslie-Wallace J, this does not go so far as to establish that the appeal was lodged without reasonable grounds.
The failure to attend, accompanied by dismissal of part of the proceedings indicates that the application, at least in significant part, was pursued in a vexatious manner, in the sense described at s 102Q(c) and (d).
[23r] On 21 June 2017, [Ms Rilak] filed two Applications for extension of time in respect of an Appeal. She sought an extension of time in respect of Orders made by Stevenson J on 7 July 2016, and Orders made by Rees J on 22 July 2016. On 12 July 2017, both Applications were dismissed, with costs… [Ms Rilak] has not paid those costs to me.
These were relied upon by the Father as specific examples of vexatious litigation.
The Mother’s written submissions responded that “extension of time request – the application was made for utilitarian value as noted in Ainslie-Wallace J’s judgment of 12 July 2017 at [19]. Statutory criteria (a) - (d) fail. It cannot count.”[15]
[15] Mother’s written submissions filed 12 September 2019, [7].
It may be observed that each of the applications was made almost a year outside of the appeal period. The pursuit of such extensions of time points to the proceedings being without reasonable grounds, but without further information, not to a degree that marks them out as vexatious.
[23s] On 29 August 2017, [Ms Rilak] filed an Application in a Case, seeking Orders, inter alia, staying Justice Rees' Orders of 11 May 2017 and that certain justices recuse themselves. On 26 September 2017, Justice Rees made Orders dismissing her Application.
The Father relied upon this as an example of vexatious litigation by the Mother.
The Mother’s written submissions stated that “for stay of costs order pending appeal EAA60/2017 and recusal of several officers - the first prayer is reasonably standard procedure in appeals, the second may have been misconceived but due to combination with first prayer, statutory criteria (a) - (d) fail. It cannot count.”[16]
[16] Mother’s written submissions filed 12 September 2019, [8].
The “misconceived” aspect of the application appears to be without reasonable grounds. To that extent, the proceedings fall within the description of vexatious (s 102Q(c)).
[23t] On 11 September 2017, [Ms Rilak] filed another Notice Disputing Itemised Costs Account referable to her 2 unsuccessful Appeals being EA 68 of 2017 and EA 69 of 2017. There were Assessment conferences before Registrar McNamara on 24 October 2017 and 14 November 2017. A notice of the preliminary assessment of the itemised costs account was issued on 14 November 2017. A Cost Assessment Order was subsequently made against [Ms Rilak] and in my favour. [Ms Rilak] has not paid these Costs to me.
The Father did not rely on this as a specific instance of vexatious litigation.
[23u] On 24 October 2017, [Ms Rilak] filed an Application in a Case. On 27 October 2017, the matter was heard in chambers by Senior Registrar Campbell and struck out.
The Father relied upon this as an example of vexatious litigation by the Mother.
The Mother’s written submissions stated that for “stay of order not to stay costs order pending appeal EAA60/2017 - Registrar Campbell’s reasons for dismissing the order were factually incorrect as shown by emails exhibited as M4 and M5. Statutory criteria (a) - (d) fail. It cannot count.”[17]
[17] Mother’s written submissions filed 12 September 2019, [9].
There is insufficient information or clarity in relation to this aspect to conclude that it constitutes an example of vexatious proceedings.
[23v] On 15 November 2017, [Ms Rilak] filed an Initiating Application and a Notice of Child Abuse or Risk of Family Violence. In this Application, she seeks parenting orders that are almost the identical to the final Orders, save that [Ms Rilak] would be B's primary carer and I would spend supervised time with B. On 28 May 2018, the matter came before Senior Registrar Campbell, including in respect of subpoena she had sought to issue. [Ms Rilak] did not appear but my solicitor did. My costs for that appearance were reserved.
[23w] On 15 November 2017, [Ms Rilak] sought interim Orders, contained in her Initiating Application. She is seeking interim Orders, inter alia, for urgency and short service, to discharge the final Orders, for B to spend unsupervised time with [Ms Rilak] and other miscellaneous parenting Orders. This Application is listed for hearing before Justice Gill on 24 January 2019.
These matters ([23v and w]) were relied upon by the Father as examples of vexatious litigation.
The Mother’s written submissions stated that regarding 23v and w “Initiating Application, Notice of Child Abuse or Risk of Abuse, and Interim application all filed 15 November 2019] “based on genuine fresh concerns that are presently untested. Statutory criteria (a) to (d) fail. They cannot count.”[18]
[18] Mother’s written submissions filed 12 September 2019, [10].
The Father identified the application as hopeless and without merit.
The circumstances are that the application sought to displace the orders of Loughnan J, which provided for a regime of supervised time with the Mother. She has not complied with those orders to any significant degree. She complains that she has not spent time with her daughter since shortly after the making of the orders (as she will not submit to the regime). She says that she will not spend time with her daughter if the time is to be supervised.
The applications constitute part of an attempt to relitigate the issues before Loughnan J, in a context where the Mother has refused to submit to the orders, despite her unsuccessful challenge of those orders on appeal.
Noting the non-exhaustive definition at s 102Q, the observations of Perram J bears repetition at this point:
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.
It may also be observed that where proceedings reflect a failure to accept principles of finality, it may be expected that the re-litigation of a resolved matter carries with it the spectre of being without reasonable prospects. Accepting that principles of finality are modified in children’s proceedings (see Rice v Asplund), where, as here, the Mother’s case is heavily reliant on her refusal to comply with or submit to orders to facilitate a relationship with B as establishing that there is now a breach of the “maternal relationship,” and there is a reliance on that fact to justify further proceedings, then such further proceedings may also be without reasonable prospects.[19]The reasoning below in relation to the Rice v Asplund aspect of the case reflects that in this case the attempt to relitigate is one that is lacking in reasonable prospects.
[19] See also discussion below regarding the Rice v Asplund aspect of the proceedings.
The Mother’s attitude to the Final Orders, and her application in the face of her resistance to those orders, brings her conduct squarely within this description. The Mother’s application attracts the description of vexatious.
[23x] On 15 November 2017, [Ms Rilak] filed a Contravention Application. On 13 December 2017, Justice Loughnan made procedural orders to prepare the matter for a defended hearing. On 18 May 2018 and on 27 August 2018, the matter was heard by Justice Gill and the contraventions she pursued were dismissed…By Orders made 29 August 2018, [Ms Rilak] was ordered to pay costs to me in the sum of $4,945.18 but she has not.
These were relied on by the Father as examples of vexatious litigation.
These contravention proceedings took place over two occasions. This was because the Mother had filed an Application for Contravention containing 345 counts of alleged contraventions by the Father. On the first occasion she selected a number of counts to prosecute. She was unsuccessful in relation to each.
On the second occasion she chose another three counts. Of these latter three counts, it should be noted that the first of the counts pursued by the Mother was specifically found to be an abuse of process as it related to a matter already determined by Rees J. I determined that this matter had been pursued in a vexatious manner. The second matter selected by the Mother was not in relation to an order of the Court and so was dismissed. The third was dismissed as failing to make a prima facie case. These were pursued without reasonable grounds.
The balance of the counts were stayed pending the lodging of security for costs. No security has been lodged.
This matter was relied upon by the Father as an example of vexatious litigation.
The Mother’s written submissions stated that “On the reasoning of Gill J that ‘absent the agreement there cannot be a breach of an obligation’ (Judgment 27 August 2018 at [8]) the mother simply misconceived the relevant legal framework. Statutory criteria (a) - (d) fail. It cannot count.”[20]
[20] Mother’s written submissions filed 12 September 2019, [11].
The failures by the Mother on each of the counts she selected, the specific finding of abuse of process and pursuit of a count in a vexatious manner, and that those failures fall within the context of the pursuit of 345 counts means that the proceedings may variously be considered as: (in one case) an abuse of process; (in relation to those initially selected by the Mother to proceed with) as without reasonable grounds; and (globally) as conducted so as to harass or annoy, or to cause delay or detriment.
These proceedings should be characterised as vexatious.
[23y] On 22 November 2017, [Ms Rilak] filed an Application for Review. On 23 November 2017, that Application was dismissed by Justice Watts in chambers.
The reviewed application was the Registrar’s dismissal of the Mother’s application to have the Interim Orders contained in her Initiating Application filed 15 November 2017 listed urgently. On 23 November 2017 Watts J dismissed the application for review, giving reasons on 15 January 2018, noting that the Mother had not justified urgency.
This was a matter relied upon by the Father as an incident of vexatious litigation.
There is insufficient to characterise this application as vexatious.
[23z] On 27 November 2017, [Ms Rilak] filed an Application in a Case. That Application came before Senior Registrar Campbell on 19 January 2018 and the outcome on the Court portal is listed as "discontinued".
The Father did not rely on this as a specific instance of vexatious litigation.
[23aa] On 7 December 2017 and 18 December 2017, [Ms Rilak] filed 2 Applications in a Case. On 21 December 2017, those Applications were dismissed by Justice Benjamin in chambers.
This was a matter relied upon by the Father as an instance of vexatious litigation.
The Mother’s written submissions stated that “these were initially listed for 12 February 2018, rendering the applications historical / redundant. Statutory criteria (a) - (d) fail. It cannot count”.[21]
[21] Mother’s written submissions filed 12 September 2019, [12].
The application was regarding the listing of the Mother’s Application in a Case on a date (12 February 2018) after the subject matter of the application (her sister visiting Australia) had passed. The Applicant contended that the dismissal did not evidence vexatious litigation because the relevant dates of her sister’s visit from 13 to 31 December had passed. However, the 7 December 2017 Application in a Case sought four instances of contact with the child, her maternal Aunt and a family friend on 17, 20, 24 and 27 December. The dismissal of the Applications in a Case by Benjamin J took place on the 21 December 2017 before the departure of the maternal Aunt. That is, contrary to the Mother’s contention, the subject matter had not passed at the time of the dismissal by Benjamin J.
In any event, the application falls within the same description as that accorded to [23v and w], and should be considered to be vexatious.
[24c] On 13 December 2017 and again on 21 February 2018, [Ms Rilak] did not appear before Registrar McNamara to settle her appeal books (EAA 108 of 2017).
The Mother did not appear to contest this. The Father did not rely on this as a specific instance of vexatious litigation.
[24d] On 9 March 2018, [Ms Rilak] did not appear before Senior Registrar Campbell in relation to her Application in a Case that she had filed on 15 November 2017.
The Mother did not appear to contest this. The Father did not rely on this as a specific instance of vexatious litigation.
[23bb] On 5 and 9 April 2018, [Ms Rilak] filed an amended Application for an Order to Show Cause, an Amended Summons and two Affidavits in the High Court of Australia. I was named as the third defendant in most (but not all) of those documents. Senior Registrar Campbell and the then Chief Justice of the Family Court of Australia were named as the first and second defendants. The matter came before Justice Edelman on 23 May 2018. He dismissed the Application and Summons, describing them as "an abuse of process". A transcript of the proceedings is available on wherein His Honour said:
“To the extent that the application relates to the main proceedings, it is an abuse of process. The main proceedings were heard and determined on 13 November 2015 by orders subsequently amended. An appeal by the plaintiff was dismissed and special leave was refused. An attempt to relitigate those matters by constitutional writs, declarations or injunctions is an abuse of process.
An attempt to leapfrog that process via the original jurisdiction of this Court is, for the reasons just given, also an abuse of process in this case. Hence, to the extent that the summons and application relates to the 19 January 2018 hearing, and a pending hearing or hearings in the Family Court, about which matters are still extant before the Family Court, it is also an abuse of process because any reasonable and appropriate application by the plaintiff should in the circumstances of this case be made in the first instance to that Court or as an appeal from that Court.
Rule 25.03.3(a) of the High Court Rules 2004 (Cth) provides that on the hearing of an application for an order to show cause a Justice may order that the application be dismissed. In addition, rule 27.09.4(c) provides that where a proceeding generally, or any claim in a proceeding, is an abuse of the process of the Court, the Court or a Justice may give judgment in the proceeding or in relation to a claim."
The Father relied on this as evidencing vexatious litigation.
The Mother’s written submissions stated that Edelman J had only described an abuse of process “because His Honour would have wished to see Constitutional issues raised to invoke the jurisdiction given that other matters were still on foot in the Family Court, a far narrower concept of ‘abuse’ than in the FLA. It cannot count.”[22]
[22] Mother’s written submissions filed 12 September 2019, [2].
The characterisation by Edelman J of the proceedings as an abuse of process brings it within the description of vexatious proceedings (s 102Q(a)).
[24e] On 28 May 2018, [Ms Rilak] did not appear before Senior Registrar Campbell in relation to the Subpoenas for the Production of documents that she had filed.
The Mother did not appear to contest this. The Father did not rely on this as a specific instance of vexatious litigation.
[23cc] On 1 June 2018, [Ms Rilak] filed an application in a case, seeking orders, inter alia, for urgency, short service and that Senior Registrar Campbell recuse himself.
This was relied upon by the Father as an instance of vexatious litigation.
The Mother’s written submissions stated that “he was administratively replaced with Registrar Cameron, rendering the application historical / redundant. Statutory criteria (a) - (d) fail. It cannot count.”[23]
[23] Mother’s written submissions filed 12 September 2019, [13].
The application was dismissed, with the consent of the Mother, on 21 May 2019, by me on the basis that the matter for which recusal was sought was no longer before Registrar Campbell. The fact of dismissal in this instance does not speak to the application as being vexatious.
[23dd] On 27 June 2018, [Ms Rilak] filed an application in a case, seeking orders, inter alia, for urgency, an unnamed expert, to be nominated by [Ms Rilak], to be appointed to assess B’s ‘safety and wellbeing’.
This was relied upon by the Father as an example of vexatious litigation.
The Mother’s written submissions stated that “the reasonable necessity is confirmed by the father’s admission that the child has a ‘therapeutic’ relationship with only one person, Ms RR, who may reasonably be expected to display bias. Statutory criteria (a) - (d) fail. It cannot count.”[24]
[24] Mother’s written submissions filed 12 September 2019, [14].
It is an application that remains unresolved. It appears to seek to revisit the matters that were the subject of the determination by Loughnan J in the final hearing in 2015, in the same circumstances as [23v and w] and again meets the description of vexatious.
[23ee] On 14 August 2018, [Ms Rilak] filed an Application in a Case, seeking Orders relating to a subpoena issued to Ms RR.
This was relied on by the Father as an example of vexatious litigation, however, the Mother was successful in this application. The applicant successfully required Ms RR to produce items in accordance with the subpoena, over objection from both Ms RR and the Father. This should not be construed as vexatious.
[23ff] On 31 October 2018, [Ms Rilak] filed an application in a case, seeking orders, inter alia, for urgency, discharging the final orders, interim parenting orders that would see B spend time with [Ms Rilak], including on an unsupervised basis.
The Father relies upon this as an example of vexatious litigation.
The Mother, in her written submissions says “seeking contact time for Christmas was rendered historical and amended with the Court’s leave to seek birthday time, which is now also historical, having not been heard in time. It cannot count.”
It should be observed that this was also an application that sought, among other things, the discharge of Loughnan J’s orders and the reinstatement of unsupervised time, in the same circumstances as [23v and w]. Again, it meets the description of vexatious.
Since the filing of the Father’s Response two additional instances arise. The Mother served upon the Father a Notice to Produce and a Notice to Admit Facts.
The Mother asserted that the “Notices to Admit Facts and Produce in present matter - a genuine attempt to reduce the burden of cross-examination. It ought not count.”[25]
[25] Mother’s written submissions filed 12 September 2019, [17].
The Father was excused from compliance with each by the Court. Each was oppressive in the context of the current proceedings, the Notice to Admit Facts being argumentative and comprising 423 contentions advanced by the Mother. Each falls within the description of being conducted in a way so as to harass or annoy, cause delay or detriment” and should be regarded as vexatious.
Discussion regarding the s 102QB application
Before turning to the consideration of the principles and circumstances as set out above, it is important to pay heed to matters the Mother addressed directly in her written submissions. A number of those submissions, as they relate to specific instances of litigation have already been extracted.
The Mother also emphasised a number of other points. Firstly she raised a lack of attack upon her bona fides by the Father:
“The father agreed that the mother loves her child. He has not submitted that the mother’s motivation for litigation is done to harass, annoy or vex in any other way. Thus, in the end, the only things that could possibly count are those things where the mother has misconceived the legal framework sought to be applied. These ought not be counted because, taking into account the mother’s lack of legal support and training, and language and cost barriers, it would be unfair and prejudicial to do so.”[26]
[26] Mother’s written submissions filed 12 September 2019, section 1 Was anything vexatious?
As noted previously, a subjective intention (or motivation) is not a necessary ingredient for litigation to be vexatious, save for (b) of the definition at s 102Q. The manner of conduct of proceedings, which is productive of harassment, annoyance, delay, detriment or wrongful purpose may be sufficient (see (c) of the definition). Further, an abuse of process does not require an underlying intention that the processes be abused (see (a) of the definition). Further, it may be observed that a refusal to accept the finality of the proceedings may produce conduct that is vexatious, even where that refusal is linked to subjectively noble intentions (such as perceptions as to the welfare of a child).
The Mother also raised the nature of the subject matter of the litigation as pertinent to a consideration of whether conduct is vexatious, and of the requirement for frequency. To this end she observed that:
“Complex, high-stakes cases like this one demand greater leniency for procedural or legal errors made by litigants”.[27]
[27] Mother’s written submissions filed 12 September 2019, section 2 Frequency.
Further, the Mother submitted that:
“as long as there is a real question of the child’s best interests on foot, the ‘frequency’ threshold cannot be met. The question of the child’s best interests arises here from the unforeseen and unjustified maternal severance, lack of appropriate therapeutic support, and filing of Notices that raise new evidence of abuse and risk of abuse.”[28]
[28] Mother’s written submissions filed 12 September 2019, section 2 Frequency.
The Mother is correct to emphasise these matters. Just as it is recognised that a vexatious litigant order is, in the words of Perram J “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” it must also be recognised that the focus in child related proceedings, such as these, is the child, and that the proceedings, unlike other forms of litigation, are not strictly inter partes. This sounds another note of caution before making a vexatious litigant order.
At the same time, just as Perram J observed the role of a vexatious litigant order is to “shield both the public, whose individual members might be molested by the proceedings, and the court itself, whose limited resources and needs must be carefully managed and protected,” a vexatious litigant order may operate protectively toward a child. The adverse impact of court proceedings on children are well recognised. Such is recognised in Marsden & Winch in the Full Court’s discussion of the rule in Rice v Asplund. That impact can only deepen where vexatious proceedings are encountered.
The Mother urged the Court to recognise the particular difficulties she labours under, being unrepresented and with English as her second language.
“Properly, and bravely, the mother has chosen to respond to the severe distress of these facts in a formal manner - that is, through litigation. The mother has been genuinely impecunious as to the ability to achieve consistent legal support for this proper course of action. The mother’s proper course of action may have at times suffered from the kinds of defects to be expected from a largely self-represented litigant (especially one for whom English is a second language). Even if some or all of the things in the above list could be classed as ‘vexatious’, to see these defects in the collective sense of ‘frequently vexatious’ would be to punish the mother for her lack of legal support and / or her lack of training to handle the case’s legal complexity.”[29]
[29] Mother’s written submissions filed 12 September 2019, section 2 Frequency.
The Mother is correct to emphasise her position as unrepresented, and with English as a second language. This is the sort of matter that may colour the consideration and characterisation of various aspects of litigation that are alleged to be vexatious.
The Mother also posed an alternative argument, based on inefficacy in a s 102QB order:
“There would be no utilitarian value in making an order under (b), as the mother could institute proceedings of a similar nature in the equity in the Family Court (s21(2A)) or in the Supreme Court of NSW.”[30]
[30] Mother’s written submissions filed 12 September 2019, section 3 Outcome.
This is a matter that does the Mother’s resistance to the vexatious litigant order no benefit. It re-emphasises a quality of vexatiousness noted by Perram J, which bears repeating:
(A)lthough 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.
In assessing the above circumstances, what is required to enliven the power to make a vexatious proceedings order is the institution or conduct of vexatious proceedings, done on a frequent basis.
It may be observed from the outline of various proceedings instituted by the Mother as set out above, that she has been frequently, but not quite universally, unsuccessful in her applications before the Court. This was not put forward by the Father as central to his application pursuant to s 102QB. It forms, at best, a general context for those matters specifically relied upon by the Father.
What is specifically relied upon by him are those instances identified above. Not all of those instances identified by the Father have been shown by him to be examples of vexatious litigation.
From the analysis above, it may be seen that vexatious proceedings have been instituted and or conducted on a number of occasions since the handing down of final orders by Loughnan J on 20 November 2015. The question that remains then, is whether these instances should be described as frequent.
As identified above, this is not a mathematical question, but is a question to be determined in the context of the particular case and proceedings being conducted. It is also not a matter simply to be answered by saying that only a portion of the proceedings instituted have been established to be vexatious, as the example of the rabid dogs posed by Leeming JA illustrates.
Here eleven instances have been determined to be vexatious. The quality of vexatiousness has spanned a number of descriptions, from those conducted in a way to harass or annoy, cause delay or detriment, to those pursued without reasonable grounds, to those which constituted an abuse of process.
Further, the institution of a number of the proceedings reflected a non-acceptance of litigation finality (qualified as it is in children’s proceedings). This last aspect, following unsuccessful appeals to the Full Court and High Court, was not demonstrated merely by the institution of fresh proceedings, but by the context of the institution of those proceedings, and the statements made by the Mother demonstrative of a refusal to submit to the orders of the Court. Given the analysis of the Rice v Asplund aspect below, the attempt to relitigate the Loughnan J orders is also an attempt made without a reasonable basis.
The orders made by Loughnan J provided for the Mother to have supervised time with B. The Mother has indicated her unwillingness to submit to any such order, and essentially relies on that unwillingness to found the basis for further proceedings, by virtue of what she describes above as “unjustified maternal severance.”
The identified examples of vexatious litigation are sufficient to meet the description of frequent, in the context of the proceedings being taken. They permeate the litigation to such an extent that they cannot be regarded as less than frequent.
This enlivens the discretion to make vexatious proceedings orders.
In Pencious & Searle the Full Court accepted Perram J’s description of the discretion as being one for which the considerations are unconfined, but that “the factors which will be relevant are informed by the protective purpose which the order serves.” Thereafter Perram J pointed to the question of whether the attitude or conduct of the litigant was indicative of insight, or demonstrative of a likelihood of the commencement of further proceedings. Perram J also pointed to the damage and inconvenience caused by the litigation.
Here it is inevitable that, unless restrained, the Mother will continue to litigate the issue. She has signalled her (misguided) intention to attempt to do so even if restrained, by having recourse to the Supreme Court of NSW. The arguments she has presented point to an unwavering belief in the necessity to continue to pursue the issue.
Already it is a path of litigation littered with unfulfilled costs orders against the Mother. It may be anticipated that, and the Father’s evidence established that, the litigation is a heavy burden for him to carry, and a burden he carries along with the sole care of B.
It also must be anticipated that the unjustified burden upon the Court, and the consequent impost upon other litigants would also continue, either by virtue of the current litigation or the institution of further litigation.
Each of these matters falls within the protective purpose of orders that would bring to an end both current proceedings, and prohibit future proceedings (subject to the processes embedded in the Rules where a vexatious proceedings order has been made).
Each of these matters is sufficient to justify the application of the extreme remedy afforded by s 102QB.
Rice v Asplund
Although the making of orders pursuant to s 102QB will dispose of the proceedings, the alternative argument put by the Father, reliant upon Rice v Asplund still bears consideration.
The principles in Rice v Asplund are explored at length in Marsden & Winch.[31] Without reciting the entirety of what is said there, the following extract sets out the most salient aspects to the current matter:
[31](2009) 42 Fam LR 1.
The application of the rule was again described by Warnick J in [45] – [49] inclusive. Before turning to what Warnick J said of it, it is useful to recall that Rice & Asplund involved an appeal from custody orders which reversed an order made nine months beforehand. In her reasons for judgment (at 78,905), Evatt CJ said of the position of a court confronted with an application to change an earlier order that:
It should not lightly entertain an application to reverse an earlier custody order. To do so would be to invite endless litigation for change is an ever present factor in human affairs. Therefore, the court would need to be satisfied by the applicant that, to quote Barber J., there is some changed circumstance which will justify such a serious step, some new factor arising or, at any rate, some factor which was not disclosed at the previous hearing which would have been material.
Evatt CJ went on to say that the threshold question was not necessarily one for preliminary determination.
As Warnick J discussed, the purpose of the “rule” is to discourage “endless litigation” In addition, as Nygh J said in McEnearney (1980) FLC 90-866 at 75,499:
…the principle that there be an end to litigation has equal force in custodial disputes and in some respects may have even greater force in custodial disputes. The last thing, of course, that this court would wish to see would be a perennial football match between parents who because the strict principles of res judicata are not applicable might seek to canvass again and again the question of custody of a child with the enormous psychological harm which they would be inflicting not only upon each other but especially upon the child.
Warnick J opined in SPS & PLS (supra) that:
58. Another end served by the rule is that it avoids one judge substituting his or her opinion of what is in the best interests of a child for that of another judge, though both opinions are based on the same or similar facts. This "evil" is avoided by a requirement that the previous order should not be altered unless there has been a change of circumstances sufficient to justify that result.
Warnick J had earlier said at [48]:
In my view, reflection on the rule shows that:
(i) What the application of the rule can achieve if dealt with as a preliminary matter is different from what it can achieve if dealt with at the end of a full hearing.
(ii) In its original formulation, the rule is directed to application as a preliminary matter. Yet, contemporaneously with that formulation the court in Rice and Asplund determined that the rule could equally be applied at the end of a full custody hearing. The consequences of that determination have received little attention.
(iii) At whatever stage of a hearing the rule is applied, its application should remain merely a manifestation of the "best interests principle".
(iv) Discussion in terms that the rule may be applied as a "preliminary matter" or the primary application be first heard "on the merits" may be unhelpful, particularly because of the implication that, if the rule is applied as a preliminary matter, the parenting application is not then dealt with "on the merits".
(v) The application of the rule is closely connected with the nature of, and degree of, change sought to the earlier order.
(vi) "Shorthand" statements of the rule may contribute to its misapplication.
(vii) Any application of the rule must now measure the evidence against the principles set out in Part VII of the Act, in particular the objects of the Part, the presumption of equal shared parental responsibility and the steps required by the Act consequent upon an order made or to be made in that regard.
We agree with those observations. Warnick J went on to consider each of these observations, recognising (at [74]) that once a court refrains from applying the rule as a preliminary matter and embarks upon a hearing the rule should not necessarily be cast aside although its force might be diminished. Importantly, Warnick J made the point that the implication should be avoided that if the rule is applied as a preliminary matter the parenting application is not dealt with on the merits. In particular, he noted that the “paramountcy principle” still applies to the decision to dismiss an application to vary (s 60CA of the Family Law Act 1975 (Cth); see also Newling & Mole (1987) FLC 91-856; F & N (1987) FLC 91-813; McEnearny (supra)). We agree with the conclusion reached by Warnick J (at [81]) that:
…when the threshold question described in Rice and Asplund is determined as a preliminary matter, it remains a determination “on the merits”. Where an application is dismissed at a preliminary stage, it is not dismissed for some technical reason, such as the failure of a party to appear or some lack of compliance with form and procedure but rather because, assuming the evidence of the applicant is accepted, there is an insufficient change of circumstance shown to justify embarking on a hearing. Though sometimes unstated, the underlying conclusion will or ought be that the interests of the child in not being the subject of further litigation is more powerfully in the child’s welfare than to allow the application to continue.
In summary, the best interests issue arises because there are so many changes in the lives of families that the changed circumstances that will permissibly allow re-litigation of a decision must be circumscribed, otherwise there would exist in some cases the spectre of endless litigation finalising only when the child attains 18 years of age and the courts no longer have jurisdiction.
Here it is sought by the Father to deal with the matter as a threshold issue. The Mother dealt with the issue at length in her written submissions. She set out what she described as the “relevant new circumstances” as follows:
A Total maternal severance;
B Lack of appropriate therapeutic support for the child; and
C Filed Notices of Risk of Abuse evidencing paternal abuse after final orders were made.
The Mother also argued that there should be a departure from the rule in Rice v Asplund, stating that:
There is also a need to establish a new category of case for where one party cannot establish an evidentiary basis for new circumstances due to that party’s separation from the child. In such circumstances, the sole contact parent ought to have to establish that new circumstances do not exist. This is because otherwise the court would have given up the ability to vindicate the fiduciary like duty demanded by s60CA of the FLA.
This submission was reflective of the somewhat speculative propositions the Mother put forward to seek to establish a relevant change in circumstances, as outlined in B and C above.
The Mother’s assertions about a lack of therapeutic support contained in her submissions were put on a highly speculative basis and without sufficient support to justify the reopening of proceedings as being in B’s best interest.
The Mother’s assertions flowing from the Notices of Risk are reliant upon similar speculation, along with the raising of a matter that predated the original trial (her allegations of sexual abuse) and the breakdown of contact between the Mother and B.
Of those matters, the one most akin to a change of circumstances is the breakdown in contact and relationship between the Mother and B, as set out at A above.
This “total maternal severance” as described by the Mother bears closer inspection in the light of the Rice v Asplund issue. It is an issue that, combined with the protective nature of the orders made by Loughnan J, calls into play the primary considerations.
As noted above in the judgment, the context of the Mother having no contact with B is the Mother’s refusal to submit to the Orders made by Loughnan J. She has made it quite clear that she will not submit to orders of the type made by Loughnan J. Those Orders, as upheld by the Full Court, are protective of B and made in her best interests.
The corollary of orders being made that require supervision is the result that if a parent does not submit to such, the time will not take place. That is a direct consequence of such orders. While it might be unexpected that a parent would refuse to submit to such orders, it is not unexpected that if a parent declines to do so that the parent will then spend no time with the child. Under such circumstances, construing the “total maternal severance” as a relevant change does a disservice to the original orders.
To the extent that the Mother’s refusal to accept those orders, or to comply with them, or to spend time with B as provided for by them might be seen to effect a change in circumstances, it is not a change in circumstances of a nature that justifies a further trial. Rather it would constitute what Nygh J described as the “perennial football match between parents who because the strict principles of res judicata are not applicable might seek to canvass again and again the question of custody of a child with the enormous psychological harm which they would be inflicting not only upon each other but especially upon the child.”
The Mother has identified no (reasonably based) circumstance that points to the prospect of orders being made, reliant on the purported change in circumstances, that she would regard as acceptable. There can be no reasonable expectation that where the “total maternal severance” is brought about because the Mother will not spend time with B in the terms ordered by the Court, that it is on the cards that orders could be made to relieve that position.
This is a case where “the interests of the child in not being the subject of further litigation is more powerfully in the child’s welfare than to allow the application to continue.”
Accordingly, even were no order made pursuant to s 102QB, the Initiating Application would be the subject of dismissal.
I certify that the preceding two hundred and twelve (212) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 4 February 2020
Associate:
Date: 4 February 2020
- AGLC
- Rilak & Tsocas [2020] FamCA 49
- Case
- [2020] FamCA 49
- Decision Date
CaseChat Overview and Summary
The primary legal issues before the Court were whether the Mother's applications constituted vexatious proceedings, and if so, what orders should be made under section 102QB of the *Family Law Act 1975*. Additionally, the Court had to determine the threshold issue under the principles established in *Rice v Asplund*, namely whether there had been a material change in circumstances or a material new factor that would justify varying the existing final parenting orders.
The Court reasoned that a subjective intention to harass or annoy was not always necessary for proceedings to be considered vexatious; the manner of conduct, causing harassment, annoyance, delay, detriment, or a wrongful purpose, could be sufficient. The Court also noted that a refusal to accept the finality of proceedings could lead to vexatious conduct, even if motivated by a perceived concern for a child's welfare. Applying the principles from *Rice v Asplund*, the Court found that the Mother had not demonstrated a material change in circumstances or a material new factor to warrant varying the existing parenting orders. The Court emphasised that the purpose of the *Rice v Asplund* rule is to discourage endless litigation and that allowing applications without a sufficient change in circumstances would inflict psychological harm on the parties and the child.
Consequently, the Court made orders pursuant to section 102QB of the *Family Law Act 1975*, dismissing all extant applications filed by the Mother and prohibiting her from instituting further proceedings under the Act in relation to the child or the Father without first obtaining leave of the Court.
Orders
Orders of the court
1.
That, pursuant to s 102QB(2)(a) of the Family Law Act 1975, all extant applications filed by the Applicant Mother, Ms Rilak, be and hereby are dismissed.
2.
That, pursuant to s 102QB(2)(b) of the Family Law Act 1975, the Applicant Mother, Ms Rilak, born … 1967, be and hereby is prohibited from instituting proceedings under the Family Law Act 1975 in relation to the child B, born … 2010.
3.
That, pursuant to s 102QB(2) of the Family Law Act 1975, the Applicant Mother, Ms Rilak, be and hereby is prohibited from instituting proceedings under the Family Law Act 1975 in relation to the Respondent Father, Mr Tsocas, born … 1957.
Note: The form of the order is subject to the entry of the order in the Court’s records.
Background
Background to the litigation
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.