Salih and Kaleel
[2008] FMCAfam 204
•27 February 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SALIH & KALEEL | [2008] FMCAfam 204 |
| FAMILY LAW – Parenting – transfer of proceedings – procedural fairness –vexatious litigant. |
| Family Law Act 1975, s.118 |
| Ex parte Skyring (1996) 135 ALR 29 In the Marriage of McEnearney (1980) FLC ¶90-866 Jackman & Beauregard (2006) FamCA 1393 Rice and Asplund (1979) FLC ¶90-725 SPS & PLS [2008] FamCAFC 16 Vlug and Poulos (1997) 22 Fam LR 324; (1997) FLC ¶92-778 Zabaneh & Zabaneh (1986) FLC ¶91-766 |
| Applicant: | MR SALIH |
| Respondent: | MS KALEEL |
| File Number: | CAC 2343 of 2007 |
| Judgment of: | Neville FM |
| Hearing date: | 27 February 2008 |
| Date of Last Submission: | 27 February 2008 |
| Delivered at: | Canberra |
| Delivered on: | 27 February 2008 |
REPRESENTATION
| Counsel for the Applicant: | Mr Salih appeared on his own behalf |
| Counsel for the Respondent: | Mr Hubert acting as agent |
| Solicitors for the Respondent: | The Peoples Solicitors Pty Ltd |
ORDERS
The matter be transferred to the docket of Federal Magistrate Henderson pending the determination of the Family Law Act 1975 section 118 application in the Family Court of Australia in Parramatta.
IT IS NOTED that publication of this judgment under the pseudonym Salih & Kaleel is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT CANBERRA |
CAC 2343 of 2007
| MR SALIH |
Applicant
And
| MS KALEEL |
Respondent
REASONS FOR JUDGMENT
Introduction
On 27th February 2008, I made orders in the following terms: `That the matter be transferred to the docket of Federal Magistrate Henderson [in Parramatta] pending the determination of the s.118 [of the Family Law Act 1975] application in the Family Court of Australia in Parramatta.’
Mr Salih has asked for reasons for that order. These are those reasons.
Current Applications(s) & Relevant Background
Mr Salih filed an application in this Court on 7th December 2007, pursuant to which he sought interim orders to the following effect (summarily stated): that (a) his daughter S continue to live with her Mother, the respondent Ms Kaleel, and (b) S spend nominated time with her Father, Mr Salih. S is in her in her fourteenth year. The Final Orders sought by Mr Salih, also set out in the same application, seek a shared care arrangement in relation to S. Both S and her Mother live in Sydney. Mr Salih gives an address care of a postal box number in the ACT.
Mr Salih has filed two affidavits in these proceedings, one dated 7th December 2007; the other dated (and filed) 15th February, 2008. This latter affidavit attaches to it the orders of Justice Chisholm made in the Family Court of Australia on 19th December 2003. I need not repeat them here, except to note that his Honour ordered that S live with her Mother and that quite limited supervised time be spent with her Father.
On the face of the current application, Mr Salih seeks to alter, and to a significant degree, the detailed orders of Justice Chisholm. There appears to have been an independent children’s lawyer in the proceedings before his Honour. There was no such advocate in the proceedings before me, nor could there realistically have been given their embryonic nature.
One affidavit was filed in response to Mr Salih’s Application. It was sworn by Ms Janice Gounder, a solicitor from Sydney who acts for the respondent Mother. In the course of that affidavit, Ms Gounder deposes to there being a part heard application before Collier J in the Family Court in Parramatta. Ms Gounder also deposes that on 27th June 2007 Collier J struck out an application that was filed in the Family Court in Canberra on 22nd February 2006. That application, she deposes, was in identical terms to that which Mr Salih has now filed in this Court and is currently before me. Ms Gounder attaches to her affidavit a copy of Collier J’s reasons of 27th June 2007. She swears that there has been no significant change in circumstances since his Honour’s judgment.
Ms Gounder’s affidavit also attaches a copy of Justice Chisholm’s judgment of 19th December 2003, which is obviously the basis for the Orders made the same day to which I have referred earlier. Finally,
Ms Gounder deposes to the fact that the only change in circumstances since Chisholm J’s judgment and Orders of December 2003 is that S is now 13 years old and in year eight at High School.
In addition to this material, Mr Hubert, acting as agent for
Ms Gounder, filed in Court an Application in a Case. Attached to that document were two other judgments. The first [in time] is a judgment of Faulks J, delivered on 30th June 2005, in which an application by
Mr Salih to be granted `custody’ of his daughter was dismissed.[1] The second judgment attached to the application filed by Mr Hubert was by Kay J, delivered on 19th September 2006. The application before his Honour was to seek an extension of time for an appeal against the Orders of Faulks J the previous year. That application was dismissed.
[1] In that judgment, Faulks J referred, among other things, to the evidence that Mr Salih sought to put before the Court regarding his state of mental health, an issue that occupied Chisholm J in 2003. His Honour referred to a report from Dr O, a Senior Consultant Psychiatrist. At par.19 of his judgment, Faulks J observed and referred to his reasons for rejecting that evidence from Dr O. Mr Salih has provided the Court with another letter from Dr O, this time in the form of a letter addressed to Chief Justice Bryant of the Family Court dated 12th July 2006. Thus, again, on the face of it, the materials before this Court (leaving aside matters of improper form of much of the evidence upon which Mr Salih seeks to rely) are the same as those presented in similar applications in the Family Court in the quite recent past.
I should also note that among the formal Orders sought in the Application filed by Mr Hubert in this Court included that Mr Salih be declared a vexatious litigant [pursuant to s.118 of the Family Law Act], and that he be restrained from filing any further applications in this matter without leave of the Court.
Thus, there appear to be concurrent proceedings, in different Courts, involving the same parties, seeking substantially the same orders, including that Mr Salih be declared a vexatious litigant.
On 27th February 2008, Mr Salih, appearing on his own behalf, put submissions to me regarding the orders he sought. Mr Hubert appeared on behalf of Mr Salih’s former wife, Ms Kaleel. Summarily stated,
Mr Hubert’s submissions focussed on the s.118 application that remains on foot to be determined in the Family Court of Australia.
Mr Salih contended that an electronic search of the publicly available Family Court records shows that there are no extant applications involving him.
In the course of the hearing, I advised all parties that inquiries made by this Court of the Family Court registry in Parramatta confirmed that the s.118 application remained alive but yet to be determined.
One final factual matter needs to be noted. There is another annexure to Ms Gounder’s affidavit. It is a schedule (prepared by Mr Hubert), which runs to 7 pages. It summarises every application filed by both parties as well as every `court event.’ There have been fifty-four (54) `court events’ alone involving these parties, excluding the current application before this Court.
Disposition of the Application
Perhaps the greatest risk were I to hear the current application in this Court is that it would inevitably require me hearing matters that remain unresolved before the Family Court in Parramatta. Not only would hearing the matter in Canberra be a significant duplication of sorely stretched court resources (in both Courts) but also it would not, in my view, be appropriate for this Court to traverse issues that are already before another, and superior, Court. As I have already noted – and it is unnecessary to make any formal findings in this regard – it is extremely difficult on the material before me to see how Mr Salih could get around the Rice and Asplund[2] factual issues, not to mention that there are now at least two very recent judgments in the Family Court (those by Faulks and Kay JJ respectively) which have considered almost identical materials and rejected very similar applications by
Mr Salih.
[2] (1979) FLC ¶90-725. For a very recent and detailed consideration of this important decision, see the judgment of Warnick J in SPS & PLS [2008] FamCAFC 16 (28th February 2008). At pars.57 and 58 of that Judgment, Warnick J (sitting as the Full Court of the Family Court), quoted:
Moreover, procedurally, I would be fearful that any hearing in this Court might in some way impact on or otherwise affect the s.118 hearing in Parramatta. I do not think, as a matter of procedural fairness, that the current application should be determined at least until the s.118 application in the Family Court has been resolved and orders made. It strikes me as unfair to both parties to have them litigating in two different courts, at the same time, over essentially the same matters.
I simply note, for the sake of completeness, that I have considered, but otherwise do not seek to make any formal or final determination of the fundamental principles concerning applications under s.118 and their import to the current application. It may, however, be of some assistance to the parties (and perhaps to others) if I note some of the relevant authorities in this regard.
In the recent decision of the Full Court in Jackman & Beauregard (2006) FamCA 1393, Kay J quoted [at par.14] the following observation of the trial judge [Carmody J] with obvious approval (his Honour’s judgment was adopted by the other members of the Full Court, Warnick & Coleman JJ):
Section 118 is intended to protect parties to family litigation from the needless expense and effort of defending the various applications. They are made reluctantly but for good reason.
Sometime earlier, in an extensive discussion of a significant number of authorities concerning s.118, in Vlug and Poulos (1997) 22 Fam LR 324; (1997) FLC ¶92-778, the Full Court quoted (at p.84,607) the following remarks of Kirby J in Ex parte Skyring (1996) 135 ALR 29 at 31-32:
. . . it is regarded as a serious thing in this country to keep a person out of the courts. The rule of law requires that, ordinarily, a person should have access to the courts in order to invoke their jurisdiction. It is a rare thing to declare a person a vexatious litigant. It is extremely rare in this court to use the power, whether under the inherent power or under O 63, to require leave before a person may commence proceedings invoking the court's jurisdiction.
I agree with (not to mention that I am otherwise bound by) the comments of Evatt CJ (with which Fogarty & Renaud JJ agreed) in Zabaneh & Zabaneh (1986) FLC ¶91-766 (at pp.75,586-587). Her Honour said there:
The reason why a party is restrained from instituting proceedings … is to prevent multifarious overlapping applications between the parties, which amount in essence to a harassment of the other party, and an abuse of the process of the Court, and which involve enormous expense for both the parties and the legal aid office. But when one comes to consider whether leave should be granted to institute proceedings, particularly in family law matters, one has at some point to consider, after a certain lapse of time, whether it is reasonable to reconsider the issues.
The welfare of children may ultimately demand that issues concerning access, custody and so forth, and so on, be reconsidered, but only when there is some evidence of an underlying change in the circumstances, whether that be in the attitudes of the parties, or the needs or circumstances of the children. The fact that time has elapsed or a considerable time, may be relevant, but it is not the only factor to take into account.
Her Honour’s remarks were cited approvingly by the Full Court in KS v DS (1999) FLC ¶92-860, by Nicholson CJ at p.86,165 (Coleman & Martin JJ agreeing).
Conclusion
For the reasons outlined above I cannot accede to the orders sought by Mr Salih. Leaving aside any Rice and Asplund issues (which seem to me quite significant), at the very least, it is altogether premature even to consider the application. Given the other matters I have mentioned, both as a matter of procedural fairness, and (using the words of Evatt CJ in Zabaneh) `to prevent multifarious overlapping applications between the parties’, the most appropriate location whereby all matters may be, in a sense, consolidated (at least geographically), the proceedings in this Court should be transferred to the Federal Magistrates Court at Parramatta. It may be of course, that Federal Magistrate Henderson may order that the proceedings be transferred to the Family Court, also at Parramatta. I do not wish to pre-empt that decision. Naturally, such a course is a matter for her Honour.
It is for the above reasons that I made the Order on 27th February 2008.
I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Neville FM
Associate: Renee Davidson
Date: 18 March 2008
57. In In the Marriage of McEnearney (1980) FLC 90-866, Nygh J moved beyond the general position of public interest in the finality of all litigation, to purposes more specific to family law. He said (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. (emphasis added)
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.
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