SCVG
[2020] FamCA 194
•27 March 2020
FAMILY COURT OF AUSTRALIA
| SCVG | [2020] FamCA 194 |
| FAMILY LAW – VEXATIOUS PROCEEDINGS – leave to commence children’s proceedings refused. |
| Family Law Act 1975 (Cth) ss 61B, 65C, 65K, 65K(4), 102QE, 102QF, 102QF(2), 102QG, 102QG(4), 118 Access to Justice (Federal Jurisdiction) Amendment Act 2012 (Cth) Part XIB Guardianship of Infants Act 1916 (NSW) s 16(1) |
| Official Trustee in Bankruptcy v Gargan (No 2) [2009] FCA 398 Pencious & Searle [2017] FamCAFC 210 Secretary, Department of Health and Community Services v JWB and Another (1992) 106 ALR 385 |
| APPLICANT: | Mr SCVG |
| FILE NUMBER: | SYC | 4380 | of | 2008 |
| DATE DELIVERED: | 27 March 2020 |
| PLACE DELIVERED: | Canberra |
| PLACE HEARD: | Canberra |
| JUDGMENT OF: | Gill J |
| HEARING DATE: | 3 March 2020 |
REPRESENTATION
| SOLICITOR FOR THE APPLICANT: | Self-represented |
Orders
The application for leave to commence proceedings in relation to the two children B and C is refused and dismissed.
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 SCVG has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cths).
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 4380 of 2008
| Mr SCVG |
Applicant
REASONS FOR JUDGMENT
Introduction
The Applicant is the subject of a vexatious litigant order made by Cronin J on 27 February 2015 in the following terms:
Pursuant to s 118 of the Family Law Act 1975, the father is restrained from bringing any application under the Family Law Act relating to the two children named in these orders without leave of a Judge of the Family Court of Australia.
The children referred to are B (born … 2002) and C (born … 2004).
Justice Cronin made the vexatious proceedings order in the context of parenting orders that vested sole parental responsibility with the Mother, and provided that the Father spend no face to face time with the children. Provision was made for communication by telephone, cards and letters.
On 30 January 2020 the Applicant filed an application in a case seeking leave to commence proceedings in relation to the B and C.
The application for leave
Section 118, insofar as it dealt with vexatious proceedings, was repealed and replaced by the Access to Justice (Federal Jurisdiction) Amendment Act 2012, entering into force on 11 June 2013.The replacement provisions relating to vexatious proceedings are at Part XIB.
Although expressed as made pursuant to s 118, the order, made at the suggestion of, and with the consent of the Applicant, was made pursuant to Part XIB of the Act.
The application for leave is governed by s 102QE.
The Applicant appeared on 26 February 2020 and the requirements of s 102QE were drawn to his attention, along with the issue of whether he had nominated the proper Respondents to the action.
The Applicant subsequently filed a further affidavit on 2 March 2020 in support of his application for leave.
On further appearance on 3 March 2020, the Applicant identified that he relies on s 65K for his application, which is in the following terms:
(1)This section applies if:
(a)A parenting order is in force that provides that a child is to live with one of the child’s parents; and
(b)That parent dies; and
(c)The parenting order does not provide for what is to happen on that parent’s death.
(2)The surviving parent cannot require the child to live with him or her.
(3)The surviving parent, or another person (subject to section 65C[1]), may apply for a parenting order that deals with the person or persons with whom the child is to live.
(4)In an application under subsection (3) by a person who does not, at the time of the application, have any parental responsibility for the child, any person who, at that time, has any parental responsibility for the child is entitled to be a party to the proceedings.
[1] Section 65C provides that a parenting order in relation to a child may be applied for by the child’s parents, the child, a grandparent or any other person concerned with the care, welfare and development of the child.
“Parental responsibility” is a term defined by s 61B as follows:
In this Part, parental responsibility, in relation to a child, means all the duties, powers, responsibilities and authority which, by law, parents have in relation to children
In his application, the Applicant initially named Mr Draper and Ms Eaton as the Respondents to the application. Mr Draper and Ms Eaton are the legal personal representatives for the estate of the late Mother, and are conducting other litigation in this Court in substitution for the Mother, in opposition to the Applicant.
The Applicant then modified this position, pointing to the will of the Mother, exhibited in the proceedings to substitute Mr Draper and Ms Eaton as the legal personal representatives, as appointing Mr Draper and Ms Draper as the guardians of the children, B and C. This, he suggested, made Mr Draper and Ms Draper the proper Respondents to the action.
Section 16(1) of the Guardianship of Infants Act 1916 (NSW) provides that:
The parent (including a mother or father) of a minor may by deed or will appoint any person to be the guardian of the minor after his or her death.
Accordingly, it appears that the effect of the will of the late Ms KLD is to confer aspects of parental responsibility upon Mr Draper and Ms Draper. Guardianship incorporates aspects of parental responsibility as described by s 61B.
By operation of s 65K(4) Mr Draper and Ms Draper are proper respondents to an application in relation to the children B and C.
Principles to be applied in relation to leave to commence proceedings
As noted above, vexatious proceedings, orders in relation to vexatious proceedings and leave to commence proceedings following the making of a vexatious proceedings order are dealt with at Part XIB of the Act.
Sections 102QE to 102QG deal with the commencement of proceedings where a vexatious proceedings order has been made. They are in the following terms.
Section 102QE
Application for leave to institute proceedings
(1)This section applies to a person (the applicant) who is:
(a)subject to a vexatious proceedings order prohibiting the person from instituting proceedings, or proceedings of a particular type, under this Act in a court having jurisdiction under this Act; or
(b)acting in concert with another person who is subject to an order mentioned in paragraph (a).
(2) The applicant may apply to the court for leave to institute proceedings that are subject to the order.
(3)The applicant must file an affidavit with the application that:
(a)lists all the occasions on which the applicant has applied for leave under this section; and
(b)lists all other proceedings the applicant has instituted in any Australian court or tribunal, including proceedings instituted before the commencement of this section; and
(c)discloses all relevant facts about the application, whether supporting or adverse to the application, that are known to the applicant.
(4)The applicant must not serve a copy of the application or affidavit on a person unless an order is made under paragraph 102QG(1)(a). If the order is made, the applicant must serve the copy in accordance with the order.
Section 102QF
Dismissing application for leave
(1)The court may make an order dismissing an application under section 102QE for leave to institute proceedings if it considers the affidavit does not substantially comply with subsection 102QE(3).
(2)The court must make an order dismissing an application under section 102QE for leave to institute proceedings if it considers the proceedings are vexatious proceedings.
(3)The court may dismiss the application without an oral hearing (either with or without the consent of the applicant).
(4)The court may make an order under this section in Chambers.
Section 102QG
Granting application for leave
(1)Before the court makes an order granting an application under section 102QE for leave to institute proceedings, it must:
(a)order that the applicant serve:
(i)the person against whom the applicant proposes to institute the proceedings; and
(ii)any other person specified in the order;
with a copy of the application and affidavit and a notice that the person is entitled to be heard on the application; and
(b)give the applicant and each person described in subparagraph (a)(i) or (ii), on appearance, an opportunity to be heard at the hearing of the application.
(2)At the hearing of the application, the court may receive as evidence any record of evidence given, or affidavit filed, in any proceedings in any Australian court or tribunal in which the applicant is, or at any time was, involved either as a party or as a person acting in concert with a party.
(3)The court may make an order granting the application. The order may be made subject to the conditions the court considers appropriate.
(4)The court may grant leave only if it is satisfied the proceedings are not vexatious proceedings.
Of particular importance in the consideration of whether to permit proceedings to be instituted are s 102QF(2) and s 102QG(4).
Section 102QF(2) requires a Court to dismiss the application if it considers the proceedings are vexatious. Section 102QG(4) provides that leave cannot be given unless the Court is satisfied that the proceedings are not vexatious.
Together they identify that the central consideration is as to whether the proposed proceedings are themselves vexatious. Both provisions condition the granting of leave. The ultimate burden imposed by s 102QG(4) is upon the Applicant to demonstrate that the proceedings are not vexatious. Unless such is demonstrated there is, ultimately, no discretion to grant leave.
This is consistent with the underlying purposes of a vexatious proceedings order, which were explained by Perram J in Official Trustee in Bankruptcy v Gargan (No 2)[2] as adopted by the Full Court in Pencious & Searle.[3] His Honour there identified the extreme nature of the remedy of a vexatious proceedings order, and went on to explain:
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.
[2] [2009] FCA 398
[3][2017] FamCAFC 210
The key consideration in relation to the granting of leave is whether the proposed application itself is vexatious. As set out in s 102Q, the concept of vexatious proceedings spans a number of different phenomena:
"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.
It may be observed that the Applicant faces two distinct hurdles to obtaining leave. The first is that if the Court is satisfied that the application for leave is vexatious, it must dismiss the application. The second is that if the Court is not satisfied that the application is not vexatious, the Court must not grant leave. These will be discussed further below.
The circumstances of this application
Exhibit F1 of 26 February 2020 sets out the application that the Applicant proposes to make should he be granted leave. He seeks an urgent order that B and C spend time with him pending an interview directly between them and myself. He seeks final orders to be appointed legal guardian with sole parental responsibility, that B and C live with him, with an option to spend time with the maternal grandmother.
By his affidavit filed 30 January 2020 the Applicant noted that he has not had physical contact with either for 7 years, nor has he had telephone contact for 8 months. The Applicant argued that Cronin J explained his orders on the basis that B and C would be able to determine for themselves any progression in their relationship with the Applicant. The Applicant provided argument, case law and articles pertaining to judges interviewing children directly. He recited a history in relation to the children, Ms KLD and her family predating the resolution of matters by Cronin J.
By his affidavit filed 19 February 2020 in support of his application, the Applicant emphasised the need for leave to enable him to pursue another line of litigation in the Supreme Court of NSW on behalf of B and C in relation to the late Ms KLD’s estate, to set aside the will, or pursue a family provision application, or other application under NSW succession law.
By his affidavit of 2 March 2020 the Applicant set out his history of litigation, along with other contextual matters.
The key fact relied upon by the Applicant is the death of Ms KLD. Until her death she was the sole parental responsibility holder for the children of the relationship.
The key aspects of the application may be seen to be as follows:
a)Ms KLD, who held sole parental responsibility for B and C, is deceased;
b)The Applicant has had no recent contact with B and C, and he seeks immediate time and that they be interviewed by a judge to ascertain their views;
c)B is on the cusp of turning 18, C not far from 16 years old; and
d)The Applicant wishes to challenge the will of the late Ms KLD on behalf of B and C and seeks his appointment as guardian to support that purpose.
In accordance with the requirements of s 102QE the Applicant set out in his supporting affidavit of 2 March 2020 his various court actions. There are a plethora of court actions instigated by him. He has met with varying success and failure against various litigants, including some success against Ms KLD before her death.
It is in this context that the Applicant seeks leave. As noted earlier in the judgment there are two thresholds that he must clear. The first is that if the Court is satisfied that the application is vexatious, the Court shall dismiss the application. This is a step that the Court may take in chambers and without oral hearing. Its place within the legislative scheme is suggestive that this is a step that may be taken by the Court immediately upon the filing of the application for leave.
The second threshold requires the Applicant to positively satisfy the Court that the application is not vexatious, before an application for leave may be granted. Its position within the scheme suggests that it is a consideration to be given at any point from the presentation of the Applicant’s case for leave. A final determination to grant leave may not, however, be granted without giving the putative Respondent the opportunity to be heard. If the Court is not satisfied, at least on a contingent basis, that the proceedings are not vexatious, there is no requirement to call upon the putative Respondent. There are strong reasons not to call upon the Respondent if the Court is not so satisfied, given the protective purpose of the legislation.
The obligation to prove that the proceedings are not vexatious carries with it the obligation to prove to the Court, on the balance of probabilities, that the Application does not bear the characteristics set out at s 102Q and, noting that the definition is not exhaustive, that the proceedings are not otherwise vexatious.
It should be emphasised that the refusal of leave on this second threshold does not equate to the Court coming to a conclusion that the proceedings are vexatious, but rather, failing to come to the conclusion that the proceedings are not vexatious.
While the death of Ms KLD presents a significant change in circumstances since the making of the orders by Cronin J, that change occurs within a particular context. The first is that the orders of Cronin J determined that no face to face time was in B and C’s best interests. The Applicant presents no evidence capable of affirmatively establishing that an order should be made for time. At best it is speculative upon the outcome of an interview taking place between B and C and myself.
If the Applicant is accepted in his assertion that the orders of Cronin J were on the basis that B and C would exercise their own agency in this matter as they became older, then that agency remains open for them.
As to the need for guardianship, the ages of B and C tell against such a need. The High Court has observed in Secretary, Department of Health and Community Services v JWB and Another that[4]
It is varying in that, to adopt Lord Denning MR's expression, it is a “dwindling right” which diminishes as the legal competence of the child to make decisions for herself or himself increases. That means that the relationship between a child and her or his parents will ordinarily pass through a transitional stage in which authority is shared.
[4] (1992) 106 ALR 385
In particular it is noteworthy that B is almost 18 years old, at which point no order is available to be made.
Front and centre in the application is the Applicant’s desire to litigate against the estate of Ms KLD, in the shoes of B and C. The material is not such as to demonstrate that this pursuit of collateral proceedings does not equate to “another wrongful purpose.” I stress that this does not equate to a finding that the purpose is wrongful. However, the burden rests on the Applicant to satisfy that it is not wrongful. When combined with the proliferation of his litigation against Ms KLD, and the ages of the children, and the lack of material to justify his position in relation to the orders otherwise sought for B and C, he has failed to discharge that burden.
The application for leave to commence proceedings should be refused.
I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 27 March 2020.
Associate:
Date: 27 March 2020
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