Sinclair-Small & Sinclair
[2008] FamCA 1056
•19 November 2008
FAMILY COURT OF AUSTRALIA
| SINCLAIR-SMALL & SINCLAIR | [2008] FamCA 1056 |
| FAMILY LAW – PRACTICE AND PROCEDURE – mother seeks dismissal of the father’s application and that the father be injuncted from instituting further proceedings without leave of the Court pursuant to s 118 – whether proceedings are frivolous or vexatious – history of proceedings – application of Rice v Asplund (1979) FLC 90-725 – not appropriate to dismiss final proceedings – not in position to make orders pursuant to s 118 – application dismissed |
| Family Law Act 1975 (Cth) s 118 Rice v Asplund (1979) FLC 90-725 |
| APPLICANT: | Mr Sinclair-Small |
| RESPONDENT: | Ms Sinclair |
| FILE NUMBER: | ADF | 1004 | of | 2000 |
| DATE DELIVERED: | 19 November 2008 |
| PLACE DELIVERED: | Adelaide |
| JUDGMENT OF: | Dawe J |
| HEARING DATE: | 19 November 2008 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr R. Ellis |
| SOLICITOR FOR THE APPLICANT: | Robert Ellis |
| COUNSEL FOR THE RESPONDENT: | Mr B.W. McQuade |
| SOLICITOR FOR THE RESPONDENT: | Ann Josephson Lawyers |
Orders
I dismiss the mother's application in a case in relation to section 118.
The mother is not proceeding with the application in relation to past costs and dismiss that application.
IT IS NOTED that publication of this judgment under the pseudonym Sinclair-Small & Sinclair is approved pursuant to s 121(9)(g) of the Family Law Act 1975
| FAMILY COURT OF AUSTRALIA AT ADELAIDE |
FILE NUMBER: ADF 1004 of 2000
| MR SINCLAIR-SMALL |
Applicant
And
| MS SINCLAIR |
Respondent
EX-TEMPORE REASONS FOR JUDGMENT
The proceedings before me today are proceedings concerning the two children of the parties. However, the matters which were listed before me for determination today are interim applications, being the interim application of the father filed in June 2008 seeking interim orders in very similar terms to the final orders that he sought in relation to spending time with the children and other ancillary matters.
Significantly, the matter which needs to be determined first is the application of the mother in a response filed in September 2008, in which the mother seeks orders that the father's application be dismissed, that he pay the costs and that, pursuant to section 118 of the Family Law Act, the father be injuncted from instituting any proceedings in any Court having jurisdiction under the Family Law Act without leave of the Court.
The provisions of section 118 specifically require that:
(1)The Court may, at any stage of proceedings under this Act, if it is satisfied that the proceedings are frivolous or vexatious:
(a) dismiss the proceedings;
(b) make such order as to costs as the Court considers just; and
(c) if the Court considers appropriate, on the application of a party to the proceedings, order that the person who instituted the proceedings shall not, without leave of a Court having jurisdiction under this Act, institute proceedings under this Act of the kind or kinds specified in the order;
and an order made by a Court under paragraph (c) has effect notwithstanding any other provision of this Act.
It is therefore necessary to consider all the matters put forward by the mother in consideration of the provisions of section 118.
The Court can, at any stage of the proceedings, dismiss the proceedings and then make the order restraining the father from bringing any further proceedings.
The matter has been listed before me today for argument on the papers. I have heard submissions from counsel for the mother and counsel for the father and take into consideration the affidavit material of the parties which has been filed since the fresh proceedings commenced by the father in June 2008; significantly, the two affidavits filed by the father and the affidavit of the mother.
The affidavit of the mother sets out the lengthy history of past proceedings between these parties concerning the welfare of the children. The proceedings first commenced in this Court in the year 2000, when the father filed proceedings seeking parenting orders. In 2003 that application was struck out. A further application was filed by the father a few months later, in 2003, and the proceedings were reinstated in December 2003.
Subsequently, however, due primarily to the non-compliance of the father and the non‑attendance of the father, those proceedings were struck out in October 2004. The father filed a further application in August 2005 but discontinued those proceedings in December 2005. The current proceedings were commenced by him in June 2008.
The substantive application by the father, by way of application for final orders, specifically seeks orders that the children, S and B, reside with the mother. That is paragraph 1. That is an order which already exists. However, the matter of some substance that the father seeks is paragraph 2:
“That the children spend time with the father on each alternate Sunday, from 11 am to 5 pm, and on other occasions as may be agreed between the parties or as ordered by this honourable Court.”
The Court is unlikely to make an order by way of final order which provides for something to be "as otherwise ordered by the Court".
In the applications for final orders, the father also seeks an order by way of final orders for a conference, and for his time to be spent on Sundays to be supervised by a family and child counsellor until the counsellor is satisfied that supervision is no longer required. That final order is not likely to be made in relation to supervised time on a Sunday.
Another final order also sought is the separate representation of the children by an Independent Children's Lawyer. That would not normally be the subject of a final order. A final order would normally discharge the appointment of an Independent Children's Lawyer.
In summary, the only order of significance for the purposes of today's hearing, sought by the father, is that he seeks that he spend some time with the children.
The material in support of the application filed by the father is correctly described as a recitation of the history and the father's view that his relationship with the children has been prevented because of the mother's behaviour, or persons associated with the mother.
The affidavit filed on 11 November sets out in the first few paragraphs what is described as evidence. It recites what is described by the father as the extremely traumatic effect upon him of the earlier outcome of the proceedings in which he ceased to have contact with, or spend time with, the children.
He sets out in paragraph 11 what he describes as subsequent events. Those subsequent events, however, do not fully set out the convictions which the father has had for offences including breaching the restraining order.
The emotive effect of the affidavit is highlighted by a reference in paragraph 11.19 to the fact that:
“As a consequence of being embroiled in these seemingly endless criminal matters over four or five years, I was unable to give due attention to Family Court proceedings when self-represented, or to give proper instructions to my lawyers with respect to the later proceedings in this honourable Court. In particular, I believe that I needed to finally clear up all the other matters first before being able to then concentrate on family issues.”
This appears to be an allegation that the fact that he was charged and at times convicted (and at times not convicted) of charges such as threaten to harm and threaten to kill, and offences such as breach of the domestic restraining orders, places some blame upon the mother. Paragraph 11.20 that says:
“Strangely, but to my great relief, there have been no fresh criminal allegations since the notice of discontinuance filed on 12 December 2005.”
The emotive language of the affidavit, which is usually designed to set out factual material, seems to imply that the father is blaming the mother for the circumstances in which he found himself.
Under the heading “Health Issues”, the father refers to the “largely undeserved” criminal proceedings having had an effect upon his health and wellbeing, and annexes to the affidavit a large number of reports, including some from his treating psychiatrist Dr T, and others from psychologists involved in Magistrates Court diversion programs, as well as a report of Dr R, which is the most recent one of September 2006.
Much of that affidavit material and the earlier affidavit material sets out the alleged justification for his failure to participate in his previous proceedings commenced by him in the Family Court and placing the blame of that failure, and his mental health condition, upon the mother.
The Court needs to consider very carefully the use of proceedings in the Court and must at all times avoid proceedings which would fall within the definition of section 118, particularly where the impact of the proceedings is likely to have a significantly negative effect upon the children of the parties. The affidavit material of the mother asserts that the children would be greatly upset by any renewed proceedings in this Court and by further demands for a renewal of a relationship with the father.
The Court, however, needs to look carefully at the provisions of section 118, the rules and the inherent jurisdiction of the Court in relation to proceedings. Section 118 requires that the Court dismiss the proceedings. It has been the submission on behalf of the counsel for the mother that, because the proceedings do not disclose any fresh circumstances which have arisen since the close of the proceedings, there is no new material which would justify a re‑litigation of the issues previously before the Court; that the proceedings have no prospect of success and therefore should be dismissed.
The difficulty in this matter is that it is approximately three years since the father discontinued the proceedings and the actual proceedings are for him to spend some time with the two children.
The fact that the affidavit material filed in these interim proceedings, to a large extent, merely recites past grievances of the father and does not in fact deal with the matters with which the Court will be concerned when determining what is in the best interests of the children does not mean, necessarily, that the proceedings should be dismissed at this stage.
It is necessary to consider whether the proceedings, being the final application for the father to spend time with the children, are either frivolous or vexatious.
It is not frivolous of a father to seek to spend time with his children.
Consideration needs to be given to the history of the matter to determine whether in fact the proceedings can be described as vexatious.
The ongoing history of the matter, as outlined by the mother, certainly suggests that the proceedings have not been maintained by the father with a view to obtaining orders which would be in the best interests of the children but appear to have been instigated and then not maintained, having been struck out or discontinued in a manner which has caused considerable cost and distress to the mother.
On the face of it, however, it is not necessarily the case that the current proceedings, if pursued in an appropriate manner, would necessarily be construed as vexatious. If all the father does in the ongoing determination of the proceedings is to repeat and rely upon past history, or his proceedings are discontinued or struck out, then it may well be that; having heard all of the relevant evidence about the best interests of the children, a judicial officer will determine that the proceedings have no merit and dismiss those proceedings.
At this stage I consider it is not appropriate for me to make the determination that the final proceedings are vexatious. Whether it will be in the best interests of the children, in accordance with the provisions set out in Part VII of the Family Law Act to rebuild a relationship with the father will depend upon a large amount of evidence which is not currently before the Court; such as the children's progress, the children's wellbeing, the mother's attitude, the father's attitude, the father's current mental health status and the father's ability to support the relationship between the mother and the children. These issues are distinct from the father maintaining a cause to prove that he is right and the mother is wrong.
I therefore am not in a position to determine now that the final proceedings in relation to the father seeking to spend time with the children are vexatious.
In considering the question of whether the proceedings, on the face of it, have no prospect or are likely to fail, I do consider the provisions of the Rice v Asplund[1] test, which would require, in the usual case, the finding that there are some changed circumstances or some new factor arising which would make it appropriate for the Court to reconsider the children's issues. Those principles cannot be easily applied with full force in these circumstances because the Court has not had an opportunity, due to the father discontinuing the proceedings, to carefully consider the factors upon which the best interests of the children would be determined.
[1](1979) FLC 90-725
I distinguish the case to the extent that, although Rice v Asplund has from time to time been said to apply to consent orders, in this particular case the proceedings were either struck out or, in the last instance, discontinued by the father. The new circumstance which occurs now is the fact that three years have passed. This may well be a significant factor which can be taken into account.
Both parties have also referred the Court to the case of Oscar & Traynor,[2] a 2008 decision in which reference was made to the case of Re Attorney‑General (Cth); Ex parte Skyring.[3] The Court must always be wary of summarily dismissing proceedings, in particular where an applicant seeks to come to the Court for an order that relates to the best interests of the children. In particular, reference is made in the Full Court case of Oscar & Traynor to the often-quoted passage from his Honour Kirby J of the High Court in Ex parte Skyring, where:
“… 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.”
[2][2008] FamCAFC 158
[3] (1996) 135 ALR 29
In those circumstances, and notwithstanding the substance behind many of the submissions made on behalf of the mother, I am not satisfied that it is appropriate to dismiss the final proceedings commenced by the father to seek to spend time with the two children.
As I am not in a position to dismiss those proceedings, I am not in a position to make the orders sought under section 118.
I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe
Associate:
Date: 4 December 2008
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