SPENCER and SPENCER
[2018] FCWA 249
•13 DECEMBER 2018
JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA
ACT: FAMILY LAW ACT 1975
LOCATION: PERTH
CITATION: SPENCER and SPENCER [2018] FCWA 249
CORAM: SUTHERLAND J
HEARD: 1 AUGUST 2018
DELIVERED : 13 DECEMBER 2018
FILE NO/S: PTW 7180 of 2010
BETWEEN: MS SPENCER
Applicant
AND
MR SPENCER
Respondent
Catchwords:
PRACTICE AND PROCEDURE - Where vexatious litigant seeking leave to commence new proceedings - Proposed proceedings an abuse of process and no merit in proposed claim - Leave not granted
Legislation:
Family Law Act 1975 (Cth)
Category: Not Reportable
Representation:
Counsel:
| Applicant | : | Self Represented Litigant |
| Respondent | : | Not required at hearing |
Solicitors:
| Applicant | : | Self Represented Litigant |
| Respondent | : | Not required at hearing |
Case(s) referred to in decision(s):
Acres & Cannon (No 3) [2016] FamCA 795
Cannon & Acres [2014] FamCA 104
Finch [2017] FamCA 201
Official Trustee in Bankruptcy v Gargan (No 2) [2009] FCA 398
Ongal & Materns [2017] FamCA 143
Pencious & Searle (2017) FLC 93-805
Pencious & Searle [2017] FamCA 1004
Re Garret [2016] FCA 703
WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT – PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED
IT IS NOTED that publication of this judgment by this Court under the pseudonym Spencer and Spencer has been approved by the Family Court of Western Australia pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Introduction
1The mother sought leave to institute parenting proceedings pursuant to s 102QE of the Family Law Act 1975 (Cth) (“the Act”) in relation to her only son, [H], born [in] 2008.[1] If leave were granted, then the mother effectively sought to file a Form 1 application and the precise orders she sought were as follows:
[1] Refer to the mother's Form 2 Application filed 3 February 2017 and her Form 2 Application filed 31 July 2017. Those applications each contained a “Proposed Form 2 Application” setting out the orders sought in the event that she was granted leave pursuant to s102QE of the Act. The mother's Form 2 Application filed 3 July 2017 essentially superseded the Form 2 Application filed 3 February 2017 as it contained an amended "Proposed Form 2 Application" which was a photocopy of the "Proposed Form 2 Application" that the mother's had sought leave to file in her Form 2 Application filed 3 February 2017, with one additional order handwritten in.
1. This Application be heard with the current proceedings.
2. Full residency and responsibility for [H] be returned to myself (mother/applicant).
3. [H]’s passport to be delivered to the court by the Respondent father to be held by the court until the proceedings are finished.
4. All possessions of [H] to be returned to the Applicant/Mother within 10 days.
5. The Respondent (and any other person) knowingly involved in the removal of the child from Australia be restrained by injunction from any contact with the child until further order of the court.
6. The Court refer the Respondent, [and the Applicant’s parents] (and any other person knowingly involved) to the appropriate authority.
7. The Court make any other order required for the safe transitioning of the child to his mother/applicant.
8. Costs of the Application to be paid by the Respondent.
9. In the event that the Court requires further documents, e.g. Form 19 that the Applicant have leave to prepare and file the documents.
2At the commencement of the hearing, the mother advised the Court that she no longer sought to file a Form 4 Notice or a Form 19 Application for Contempt.[2] She also advised the Court that for the purposes of the hearing, she intended to rely on the following documents (and an order was made granting her liberty to do so):[3]
[2] As originally sought by the Applicant in her Form 2 Application filed 3 February 2017.
[3] Refer to paragraph 6 of the orders made on 1 August 2018.
a) her affidavit sworn 28 December 2015 and filed 19 January 2016, and in particular, annexures 1 to 3 inclusive and 5;
b) her affidavit sworn 1 May 2016 and filed 11 May 2016, and in particular, annexure 2;
c) her affidavit sworn 7 October 2016 and filed 10 October 2016, and in particular, annexures 1, 2 and 4 to 6 inclusive;
d) her affidavit filed 13 December 2016 with the notation “Justice Walters”, and in particular, page 8 of annexure 1A and annexure 1B;
e) her longer affidavit filed 3 February 2017;
f) her longer affidavit filed 31 July 2017;
g) her affidavit filed on 19 March 2018 from paragraph 48 onwards, together the affidavit of [a witness] also filed on 19 March 2018;
h) her affidavit filed 5 July 2018; and
i) page 29 of the transcript of the Independent Children’s Lawyer’s cross-examination of the Applicant on 1 July 2014.
Background facts – history of the proceedings
3This matter has had a long and complex history. The file currently comprises 72 volumes. These reasons comprise the 11th judgment (at first instance or on appeal) handed down in the property and parenting proceedings, which were commenced in December 2010 and January 2011 respectively. I have assumed for the purpose of these reasons that the reader has a working knowledge of those judgments, and have only set out those parts that are particularly relevant to the Applications before me. These judgments included two parentings trials and a Full Court appeal trial following the second parenting trial. In addition, the mother also unsuccessfully sought special leave to appeal to the High Court of Australia.
4The previous Family Court / Full Court judgments are:
a) Moncrieff J's Reasons delivered 17 June 2013 ([2014] FCWA 18);
b) Moncrieff J's Reasons delivered 28 August 2013 ([2013] FCWA 86);
c) Moncrieff J's Reasons delivered 21 January 2014 ([2014] FCWA 2);
d) Reasons of the Full Court (comprising Thackray J) delivered 8 July 2014 ([2014] FamCAFC 144);
e) Moncrieff J's Reasons delivered 21 November 2014 ([2014] FCWA 70);
f) Moncrieff J's Reasons delivered 21 November 2014 ([2014] FCWA 71);
g) Reasons of the Full Court (comprising Thackray J) delivered 23 April 2015 ([2015] FamCAFC 89);
h) Reasons of the Full Court (comprising Bryant CJ, Thackray and Murphy JJ) delivered 3 November 2016 ([2016] FamCAFC 212);
i) Walters J's Reasons delivered 20 December 2017 ([2017] FCWA 174); and
j) My reasons delivered 25 May 2018 ([2018] FCWA 100).
5The first parenting trial was held over 25 days before Moncrieff J in March, June and July 2013. Moncrieff J delivered his Reasons on 28 August 2013. Moncrieff J made orders for H to live with the father and the issue of the duration and conditions upon which the mother was to spend time with H was adjourned to a date in September 2013. Orders were subsequently made in October 2013 for the mother to spend time with H supervised by Anglicare. The orders made by Moncrieff J on 28 August 2013 were as follows:
1. Paragraph 1 of the orders made on 23 August 2013 be and is hereby discharged.
2. All employees, directors and agents of [H’s school] be restrained and an injunction is hereby granted restraining them and each of them from releasing the child, [H] born [in] 2008, into the care of any person, save and except for the Respondent, [MR SPENCER] (“the father”), [the Single Expert Witness] and the Independent Children’s Lawyer.
3. Service of this order is to be effected upon [H’s school] either by fax or personally to their solicitors [Law Firm X] or to the Principal, [or Head of the Junior School] or their respective deputies.
4. Until further order of the Court, the Applicant, [MS SPENCER] (“the mother”), be restrained and an injunction is hereby granted restraining her and her servants or agents, including but not limited to [specified persons], from communicating with or attending at [H’s school].
5. All previous orders as to parental responsibility for, and, residence and contact with the said child be and the same are hereby discharged.
6. The said child shall live with the father.
7. The father shall have sole parental responsibility for the said child.
8. The issue of the duration and the conditions upon which the mother is to spend time with the said child be adjourned to 17 September 2013 at 9:30am.
9. The mother shall forthwith deliver up to the father through the Independent Children’s Lawyer or the father’s solicitors [Law Firm A] at his nomination the said child’s belongings, particularly his favourite soft toys, books and personal effects and photographs of the mother, which she wishes to provide to him.
10. The father shall provide the mother with relevant school information in relation to the said child, including reports, and she shall be notified in the event of any emergency concerning the child.
11. Until further order of the Court, each of the father and the mother be restrained and an injunction is hereby granted restraining each of them from bringing the said child into contact with [the specified person] or permitting any third party to do so, without the leave of this Honourable Court being first obtained.
12. The mother be restrained and an injunction is hereby granted restraining her from bringing the said child into contact with or permitting any communication between the child and [a specified professional].
13. The father shall follow the recommendations of the Single Expert in consultation with the Independent Children’s Lawyer in relation to therapy for himself and the said child to assist in the transition for the child moving from the mother’s home to the father’s home.
14. The mother be restrained and an injunction is hereby granted restraining her from:
a)approaching the father’s premises or the said child’s school; and
b)communicating or having others communicate with the father or the child on her behalf, other than as contemplated by these orders.
15. It shall be a condition of any future contact between the mother and the said child that the mother attend upon and undertake therapy from a psychiatrist or psychologist approved by the Independent Children’s Lawyer, with liberty to apply in the event that there is a dispute as to the appropriate practitioner.
16. The orders with injunction made on 18 April 2013 and 28 June 2013 remain in full force and effect, with liberty to apply as to overseas travel, the removal of the said child from the Airport Watch List to facilitate such travel and as to the issuing of a passport for the child.
17. The Independent Children’s Lawyer be at liberty to provide a copy of the judgment delivered this day to:
a)the Australian Health Practitioner Regulation Agency (“AHPRA”);
b)to the extent not covered by Section 121 of the Family Law Act 1975, the Legal Profession Complaints Committee of the Legal Practice Board of Western Australia;
c)any therapist engaged in therapy for either of the parties or the said child;
d)the Department for Child Protection and Family Support;
e)should any further criminal complaints be made by the mother about the father, the Commissioner of Western Australia Police, if requested by the investigating officer; and
f)any contact service working with the family.
18. A copy of the transcript of the evidence of [the specified professional] be provided to AHPRA in the event that a request is made to the Court by AHPRA.
19. The question of the Respondent’s costs and any application for costs by the Independent Children’s Lawyer be adjourned to 17 September 2013 at 9:30am.
20. The said proceedings insofar as they relate to financial issues between the parties otherwise be adjourned to 17 September 2013 at 9:30am for directions.
6The second parenting trial was held over 10 days before Moncrieff J in June, July and September 2014. On 28 October 2014, after the matter was heard but prior to delivery of his Honour's Reasons, his Honour made the follow orders, declaring the mother to be a vexatious litigant with respect to the child related proceedings:
IT IS DECLARED THAT pursuant to Part XIB of the Family Law Act 1975 (“the Act”) the Child Related Proceedings conducted by the Applicant, [MS SPENCER], are vexatious as defined in Part XIB of the Act.
IT IS ORDERED THAT:-
1. Pursuant to Section 102QB(2)(b) of the Act the Applicant is hereby prohibited from instituting Child Related Proceedings pursuant to the Act in a court having jurisdiction under the Act without leave first being obtained pursuant to Section 102QG of the Act.
2. The affidavits of the Applicant and [a specified person] received on 7 October 2014 not be accepted for filing and any copies of such affidavits received by the parties, solicitors and/or counsel be returned to the Applicant.
3. All legal practitioners named by the Applicant in her Form 2 application filed on 25 September 2014 be permitted to provide such documents relating to the proceedings, including reasons for decision, transcript, applications, affidavits and any other documents relating to or arising out of the proceedings or forming part thereof necessary for those practitioners to take full and proper legal advice.
4. The Form 2 application filed by the Applicant on 17 October 2014 identified as “Costs funds rebanked” be and is hereby dismissed.
5. The Form 19 contempt application filed by the Applicant on 22 October 2014 be and is hereby dismissed without order as to costs.
6. The Respondent’s application for costs be adjourned pending delivery of judgment.
7. Judgment otherwise be reserved on the said proceedings.
7Moncrieff J delivered his Reasons for the second parenting trial and the Part XIB vexatious litigant declaration on 21 November 2014. The effect of the parenting orders was that H continue living with the father and spend no time with the mother. The orders made by his Honour on 21 November 2014 were as follows:
1. For the avoidance of doubt, the sole parental responsibility order shall be taken to mean that:
a)only the signature of the Respondent is required for all documents that a parent is ordinarily required to sign concerning a child; and
b)the usual requirement for the signature of both parents on documents, including all documents permitting and relating to international travel, be dispensed with and the Respondent’s signature alone be accepted for all such purposes.
2. All previous orders pursuant to which the Applicant, [MRS SPENCER], spends time with or otherwise has telephone contact with the child be and the same are hereby discharged.
3. The Applicant have leave to release copies of the recordings of telephone conversations between herself and the child to the Independent Children’s Lawyer.
4. The Respondent ensure that the child continues therapeutic counselling with [the therapist] or her nominee and that he complies with all of the reasonable recommendations and directions made by her from time to time, including but not limited to the frequency with which the child attends upon her until such time as [the therapist] or her nominee decides the child no longer requires her assistance.
5. The Applicant be and is hereby discharged from any obligation to attend upon [a specified professional].
6. The Applicant be at liberty to:
a)write and send presents and photographs of herself to the child at a frequency of no greater than once per week, and
b)when the child is at an age recommended by [the therapist], provide the child with short videos of herself at a frequency of no more than once every 3 months;
with such letters, presents, photographs and video clips to be sent initially via [the therapist] and thereafter upon written advice to such effect given to the Applicant by either the Respondent or [the therapist], to the Respondent at [the specified address] or such other address nominated by him from time to time, and to be provided by the Respondent to the child at his discretion, if he considers their content to be appropriate and in the child’s best interests.
7. The Respondent be at liberty to send items the child wishes to give to the Applicant, including letters, cards, gifts, photographs and video clips to the Applicant at an address nominated by her in writing.
8. The Respondent is to provide the Applicant with a copy of the child’s school reports, photographs of the child and any other information concerning the child that the Respondent wishes to give the Applicant.
9. The Respondent is to ensure the Applicant is informed as soon as is practicable if the child is required to attend hospital as an in-patient with particulars of the reason for the hospitalisation and treatment, with such information to be given via text message or email.
10. The parties are to keep each other informed of their current address, an email address and a telephone number on which they can be contacted.
11. The Respondent have liberty to remove the child from the Commonwealth of Australia for the purpose of holidays and, to that end, the necessity for the Applicant to consent to the issue of a passport for the child be and is hereby dispensed with.
12. Subject to any other requirements of the Department of Foreign Affairs and Trade, a passport be issued to the child to enable the child to leave the Commonwealth of Australia and any requirement for the Applicant’s consent for the issue of such passport be and the same is hereby dispensed with.
13. The Respondent be at liberty to remove the child from the Commonwealth of Australia notwithstanding that the specific consent of the Applicant has not been obtained.
14. The Applicant and the Respondent be restrained and an injunction is hereby granted restraining them and each of them from bringing the child into contact with [specified persons] without the prior written consent of the Respondent or order of this Court.
15. The Applicant be restrained and an injunction is hereby granted restraining her from:
a)entering upon, remaining upon, loitering near or being within 200 metres of the nearest external boundary of where the Respondent lives, the Respondent’s parents’ premises or the child’s school;
b)approaching or being within 500 metres of the Respondent or the child, save and except as allowed for by these orders or to comply with any other orders of this Court;
c)contacting, communicating or harassing the Respondent or having any third person do so on her behalf, save and except as allowed for by these orders or to comply with any other orders of this Court; and
d)attending at or contacting the child’s school or attending any sporting events or extra-curricular activities the child is participating in or having any third person do so or attempt to do so on her behalf, save and except by order of this Court.
16. The Applicant be restrained and an injunction is hereby granted restraining her from providing any documents, or copies thereof, filed, produced or tendered in these proceedings (including transcript of the proceedings) to any court, tribunal, agency or third party other than a duly instructed solicitor
who has filed a Form 8 Notice of Address for Service in these proceedings orwithout first obtaining leave of this Court.17. The Independent Children’s Lawyer be at liberty to provide a copy of all reports prepared by any witness, these orders and the judgments and reasons for decision of The Honourable Justice Moncrieff in these proceedings to any psychologist, psychiatrist or mental health professional working with the child and either of the parties as well as to the Department for Child Protection and Family Support.
18. Should any complaints of criminal or unprofessional conduct be made by the Applicant about the Respondent, the Independent Children’s Lawyer or any professional involved in these proceedings to the WA Commissioner of Police or any regulatory body, the Independent Children’s Lawyer be at liberty to provide a copy of the judgments and reasons for decision of the Honourable Justice Moncrieff in the Child Related Proceedings to the Australian Health Practitioner Regulation Agency, the Legal Practice Complaints Committee or the Western Australia Police.
19. Save for participation in any appeals filed in relation to these proceedings, the Independent Children’s Lawyer otherwise be and is hereby discharged.
20. Insofar as they relate to children’s issues, all outstanding applications filed by either party and the Independent Children’s Lawyer be and are hereby dismissed.
21. The Form 2 application filed by the Applicant on 25 September 2014 styled “19.10” be and is hereby dismissed.
8The mother commenced multiple appeals in these proceedings after Moncrieff J's judgment of 28 August 2013. She also unsuccessfully sought leave on three occasions to commence an appeal out of time. There were six appeals commenced by the mother within time. These came before the Full Court (comprising Bryant CJ, Thackray and Murphy JJ) over three sitting days in October 2015 and April 2016 and were dealt with in one judgment comprising their Honour's joint reasons. The Full Court delivered its Reasons on 3 November 2016 and dismissed all of the mother's appeals.
9The property trial was initially held before Walters J over 10 days in June 2015 and January 2016. However, the proceedings were reopened in each of May and October 2017 for the purpose of adducing further evidence such that the total sitting days of the trial was 14 days. His Honour delivered his Reasons on 20 December 2017, making final property orders.[4]
[4] The mother has since commenced section 79A proceedings.
10Since being declared a vexatious litigant on 28 October 2014, the mother has filed or sought to file a multitude of Applications in the parenting proceedings. Many of these Applications have previously be dealt with and dismissed without parenting orders being made in favour of the mother. A summary of the Applications is set out below:
a) Three ex-parte Form 2 Applications filed on 19 November 2014, 20 November 2014 and 28 November 2014, all of which were dismissed on 1 December 2014.
i)In the Application filed on 19 November 2014, the mother sought leave to file: "[a] Form 18 and supporting affidavit and (b) a Form 2 and supporting affidavit about the perception of bias". The mother also sought leave to file two affidavits of [her current husband] and two affidavits by her.
ii)In the Application filed on 20 November 2014, the mother sought leave to file "a proposed Form 2, Form 4 and an affidavit in support of a change of parenting orders/recovery orders on the Respondent and the ICLs".
iii)In the Application filed on 28 November 2014, the mother sought leave to file "either (i) a Form 1 and Form 4and/or (ii) a Form 2, Form 4 and supporting affidavit for the recovery of [H] from the Respondent's care and responsibility".
b) Seven ex-parte Form 2 Applications filed on 13 January 2015, 13 January 2015, 22 January 2015, 24 February 2015, 17 March 2015, 25 March 2015 and 7 April 2015, all of which were dismissed on 19 May 2015.
i)In the Application filed on 13 January 2015, the mother sought leave to file "a Form 2 and supporting affidavit on the Respondent for change of circumstances".
ii)In the Application filed on 13 January 2015, the mother sought leave to file "the documents attached to the supporting affidavit (by way of appendicies [sic]) to his application which comprises a Form 2 and supporting affidavit".
iii)In the Application filed on 22 January 2015, the mother sought leave to file "the Form 2 and accompanying Affidavit on change of circumstances: FOI information from [a hospital]".
iv)In the Application filed on 24 February 2015, the mother sought leave to file "the Form 2 and supporting affidavits with respect to (a) the Respondent's lack of full and frank disclosure in a timely manner and (b) the failure of the Respondent to facilitate communications between the child and his mother".
v)In the Application filed on 17 March 2014, the mother sought leave to file "the Form 2 and supporting affidavit".
vi)In the Application filed on 25 March 2014, the mother sought leave to file "the documents referred to in this Affidavit - including the vexatious litigant material attached [and] a recovery order for [H] in minute form".
vii)In the Application filed on 7 April 2014, the mother sought leave to file "the attached documentation on contempt of court by the Respondent - Form 19 and supporting affidavit"
c) A Form 2A Response filed on 23 June 2015, which was dismissed on 3 July 2015. The Response was filed in response to the Form 2 Application of the Independent Children's Lawyer filed on 12 January 2015 seeking: an injunction to restrain the mother (or her agents) from making complaints to professional bodies concerning the conduct of psychologists involved in [H]’s care; and to amend an earlier order to allow the Independent Children's Lawyer to provide (in additional to other material already provided for in the order) a copy of the orders made 28 August 2013 and 21 November 2014 to APHRA, the Legal Practice Complaints Committee or the West Australian Police in the event the mother (or her agents) made complaints of criminal or unprofessional conduct about the father, the Independent Children's Lawyer or a professional involved in the proceedings. The mother's Form 2A Response went far beyond this issue. The orders sought by the mother were as follows:
1.Sanction of the Respondent for the deliberate failure to make full and frank disclosure in a reasonable time of relevant and key material in this case for an extended period of time (and even three months after the judgement [sic]).
2.Sanction of the Respondent for swearing/affirming court documents claiming disclosure was complete and up to date when it wasn't.
3.Sanction of the Respondent's legal counsel for failing to make full and proper disclosure of documents on behalf of their client for many years and knowingly releasing disclosure piecemeal (and continuing to represent the Respondent) whilst drafting documents in a misleading and deceptive manner designed to pervert the course of justice.
4.Sanction of the Respondent's legal counsel for making representations to the Trial Judge that their client's disclosure was complete and up to date (court record).
5.That the child [H] be returned to the child's mother [Mrs Spencer] with full residency and full responsibility.
6.The child be restrained by injunction from seeing [the therapist].
7.The ICLS and Respondent's Counsel be restrained by injunction from destroying, disposing of and/or in any way altering their files, records (electronic and/or in paper form).
8.The ICLS, Respondent and Respondent's Counsel be restrained by injunction from corresponding and/or communicating with [the therapist] in person and/or via an agent.
9.The Respondent be responsible for the school and medical (including psychological and private health) related fees and expenses of the child (payable within 2 weeks of a written invoice to a nominated bank account specified by the Applicant). The Applicant to chose [sic] the service and school.
10.The Respondent be responsible for paying 18% of his genuine income by way of child support to the Applicant - via a nominated account specified by the Applicant.
11.The lawyers in this case be referred to the Legal Practice Board and Police for investigation.
12.[The therapist] be referred to APHRA and Police for investigation.
13.The Respondent be compelled to attend upon a psychiatrist of the court's choice before he has any further access/contact with the child.
14.That the application be heard in an expedited fashion.
15.The Respondent and/or the Respondent's legal counsel and/or the ICLS/Legal Aid be responsible for the costs of the Applicant.
16.The child and his belongings be instantly recovered from wherever his location is at the time of the order or at a destination specified by the court.
d) Three ex-parte Form 2 Applications filed on 11 March 2016, 31 May 2016 and 31 May 2016, all of which were dismissed on 31 May 2016.
i)In the Application filed on 11 March 2016, the mother sought leave to file an accompanying affidavit and proposed Form 2.
ii)In the Application filed on 31 May 2016, the mother sought leave to file "'updating' affidavit to be heard in conjunction with the material to be heard on the 31/5/16".
iii)In the other Application filed on 31 May 2016, the mother sought leave to file "an ammended [sic] proposed Form 2 (Annexure 17) of the Applicant's affidavit sworn the 17 February 2016 & the supporting/updating affidavit in support of both the leave Application and the proposed Application".
e) A Form 2 Application filed on 4 April 2016 and amended on 11 May 2016 and 26 May 2016 which related to both parenting and financial matters. The Amended Form 2 Application filed 26 May 2016 was dismissed without any orders being made in relation to parenting matters. The mother sought a range of orders, including an order for leave of the Court to file a further affidavit containing a psychological assessment of [H] which she alleged was withheld from her and the Court.
f) An ex-parte Form 2 Application filed on 6 July 2016, which was dismissed on 7 July 2016. This Application sought leave to file a "Form 1, Form 2, Form 4 [and] supporting affidavit. The same affidavit is in support of the Proposed Form 2 [and] this leave application".
11In addition to the applications already dealt with, there were numerous further ex-parte Form 2 Applications filed by the mother as set out below. On 19 March 2018, the mother filed an ex-parte Form 2 Application seeking leave to file updating affidavits of herself and [her current husband] to rely on in respect of her existing applications. I made directions in Chambers granting the mother leave to rely on the affidavits. The extant applications came before me for hearing on 1 August 2018. The Applications were as follows:
a) An ex-parte Form 2 Application filed on 28 July 2015 seeking leave to file a "Form 2 and supporting Affidavit". The Form 2 Application the mother sought leave to file (which had in fact been accepted for filing on 28 July 2015) sought leave to photocopy some of the material produced pursuant to subpoena (some of which related to the property proceedings and some of which related to the parenting proceedings). The presiding Judicial Officer in Chambers granted leave to photocopy those materials which related to the property proceedings but refused leave to photocopy those materials which related to the parenting proceedings.
b) An ex-parte Form 2 Application filed on 14 September 2015 seeking leave to file a "Form 2, Form 4 and supporting Affidavits (one supporting this request for leave and one supporting the Application)". The Form 2 Application the mother sought leave to file was incorrectly stamped as "filed" by the Court Registry. I also note bar the addition of one order, it was in exactly the same terms of the mother's Form 2A Response filed on 23 June 2015, which was dismissed on 3 July 2015.
c) An ex-parte Form 2 Application filed on 19 January 2016 seeking leave to file "(a) a Form 2 /recovery orders for the child [H] to be returned to his mother with full responsibility and responsibility [sic] (and/or [the mother’s father] in the interim); [and] (b) the supporting affidavit." The Form 2 Application the mother sought leave to file again was incorrectly stamped as "filed" by the Court Registry.
d) An ex-parte Form 2 Application filed on 10 October 2016 seeking leave to file a "Form 1, Form 2 [and] Form 4 with supporting affidavit" and a "Proposed Form 2 with supporting affidavit" which were included with her Application. The Form 1 Application, Form 2 Application and Form 4 Notice again were incorrectly stamped as "filed" by the Court's Registry.
e) An ex-parte Form 2 Application filed on 3 February 2017 seeking leave to file "Form 2s [and] supporting affidavits sworn 1/2/17" and "a further Form 4, Form 19 etc. if required by the court".
f) An ex-parte Form 2 Application filed on 31 July 2017 seeking leave to file a "proposed Form 2 and supporting Affidavit (sworn 20/7/17). The latter is supported by the content of the leave affidavit itself (also sworn on 21/7/17)".
12The mother agreed at the commencement of the hearing that many of the earlier filed Applications had been superseded by two most recent Applications, and that other than specific materials filed in support of those earlier Applications that she wished to rely on and which she identified for me, the Applications could be dismissed. On this basis, I made orders dismissing the extant Applications other than the Applications filed on 3 February 2017 and 31 July 2017 and made orders granting the mother liberty to rely on specific materials in support of these Applications, as outlined in paragraph 2 of these Reasons.
13The "proposed Form 2 Application" the mother sought leave to file in her Application filed on 31 July 2017 was identical to the "proposed Form 2 Application" filed with her Application filed on 3 February 2017, but for the handwritten addition of one further order. For this reason, there is no need to separately deal with the Application filed on 3 February 2017 to the extent it relates to the "proposed Form 2 Application" forming part of that Application, as the Application has been superseded by the "proposed Form 2 Application" forming part of the Application filed on 31 July 2017. This Application, as I have outlined at paragraph 1 of these Reasons, effectively seeks final orders and in this sense the mother seeks to re-litigate the parenting proceedings.
Applicable law
14The parenting proceedings conducted by the mother were declared vexatious pursuant to Part XIB of the Family Law Act 1975 ("the Act") by Moncrieff J on 28 October 2014. Part XIB came into operation for applications instituted on or after 11 June 2013, replacing the previous vexatious litigant provisions which were under s 118 of the Act. In addition to the declaration, his Honour made an order pursuant to s 102QB(2)(b) of the Act prohibiting the mother from instituting parenting proceedings without first obtaining leave of the Court pursuant to s 102QG of the Act.
15An order pursuant to s 102QB(2)(b) can only be made if the Court 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.
16The effect of the s 102QB(2)(b) order made against the mother is that any parenting proceedings commenced by the mother without the leave of the Court are stayed pursuant to s 102QD(2). The pathway for obtaining the leave of the Court to institute parenting proceedings is set out in s 102QE of the Act. Relevantly, s 102QE(3) provides:
(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.
17Pursuant to s 102QF(1) of the Act, I may dismiss an Application for leave to institute proceeding if I consider the affidavit filed in support of the Application does not substantially comply with s 102QE(3). This power to dismiss an Application is discretionary.
18Regardless of whether the requirements of s 102QE(3) have been met, pursuant to s 102QF(2), I must dismiss an Application for leave if I consider the proceedings are vexatious proceedings. Vexatious proceedings are defined in s 102Q(1) of the Act as including:
a) proceedings that are an abuse of the process of a court or tribunal;
b) proceedings instituted in a court or tribunal to harass or annoy, to cause delay or detriment, or for another wrongful purpose;
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.
19There are therefore two considerations I ought to address (one of which I must address), before I even entertain granting the mother leave to institute parenting proceedings:
a) Whether the mother's affidavit evidence substantially complies the requirements of s 102QE(3) of the Act. If it does not, I may dismiss the Application.
b) Whether the proceedings sought to be instituted by the mother are vexatious proceedings within the meaning of s 102Q(1) of the Act. If they are, I must dismiss the Application.
20It is useful at this stage to consider some general principles that have emerged from consideration of Part XIB and analogous provisions in other jurisdictions, and in particular, in cases where leave has been sought to institute proceedings pursuant to s 102QE of the Act.
21Part XIB of the Act was considered at first instance by Benjamin J in Cannon & Acres [2014] FamCA 104 and in a separate matter on appeal by the Full Court in Pencious & Searle (2017) FLC 93-805; [2017] FamCAFC 210. Both the Full Court and Benjamin J quoted with approval the following passage by Perram J in Official Trustee in Bankruptcy v Gargan (No 2) [2009] FCA 398, in which Perram J espoused the general principles that apply to applications for vexatious proceeding orders:
2.…First, the making of such an order is an extreme remedy depriving its object of recourse to the enforcement of the law which is every citizen’s ordinary right. It is, therefore, not lightly to be made.
3.Secondly, the purpose of the order is not to impose condign punishment for past litigious misdeeds; it serves instead to shield both the public, whose individual members might be molested by vexatious proceedings, and the Court itself, whose limited resources and needs must be carefully managed and protected from the expense, burden and inconvenience of baseless and repetitious suits.
4.Thirdly, as might naturally be expected, such a severe power is not enlivened by the mere single occurrence of a vexatious claim. To err is human and transient lapses of judgment, even serious ones, may be found in the most reasonable of places. Instead, the power to make the order is conditional upon the litigant having commenced not only a single vexatious proceeding but also upon having commenced similar such proceedings in this Court or in other Australian courts.
5.Fourthly, the qualities of vexation to which O 21 is addressed are to be found, as the terms of r 1(1) show, in the commencement by the litigant of proceedings which lack reasonable grounds and where the litigant’s institution of such proceedings may fairly be said to be both habitual and persistent.
6.Fifthly, whether a proceeding is instituted without reasonable grounds is a different question to, although not wholly disconnected from, the inquiry into a proceeding’s legal merits. The wheat, no doubt, must be separated from the chaff but in this area the question is whether what is before the Court contains any wheat at all. Although, often enough, no great guidance is obtained by exchanging one formula of words with another, it will be usually of some assistance, limited perhaps, to ask whether the issues brought to the Court for determination are manifestly hopeless or devoid of merit. It is, in that context, important to distinguish the difficult from the ridiculous and the unlikely from the hopeless.
7.Sixthly, … one form often to be found in the baggage of the vexatious is a failure, often a refusal, to understand the principles of finality of litigation which rescue court and litigant alike from a Samsara of past forensic encounters.
8.Seventhly, it is the related quality of repetition which underpins, in part, a need for the institution of the proceedings to deserve the appellations habitual and persistent. …
9.Eighthly, each of these notions - the want of reasonable grounds, habitual institution and persistent institution - are to be gauged objectively. …
…
12.Finally, once it is concluded that the Court’s power to prevent a litigant from commencing or pursuing proceedings has been enlivened, the considerations germane to the exercise of that power are unconfined. …
22Rees J considered the principles that apply in circumstances where proceedings have been declared vexatious in Acres & Cannon (No 3) [2016] FamCA 795. His Honour said at [32]:
it is not necessary for the Court to identify that any particular party to the proposed litigation would be troubled, vexed or harassed by the proceedings. The legislation is protective not only of the interests of persons who may be joined in or otherwise directly or indirectly affected by a vexatious proceeding, but also of the public interest in the proper administration of justice more broadly.
23In Re Garret [2016] FCA 703, Charlesworth J held at [19] that an application for leave under s 37AR (analogous to s 102QE of the Act):
will necessarily be determined against the legal history of the Court already having made findings (whether or not embodied in declarations) to the effect that the applicant is a person who has frequently instituted or conducted vexatious proceedings in Australian courts or tribunals … That history may, in a given case, be a relevant and weighty circumstance in determining whether the new proceeding sought to be instituted by the applicant is also to be regarded as vexatious. This is particularly so where the new proceeding appears to be a further attempt by the applicant to agitate an issue already determined, or is otherwise a new manifestation of the same prior obsessions which formed the background to the vexatious proceedings order made against the person in the first place.
24In Ongal & Materns [2017] FamCA 143, Berman J dealt with and granted an application for leave to institute proceedings. His Honour said at [20]:
There are a number of factors that are relevant. It is not simply a matter of considering the best interests of the child or children, although that may well be a strong consideration. The focus is clearly on whether the application should be considered an abuse of process and vexatious. That brings to account matters of public policy. There are matters in this Court, and presumably in other courts, that consume enormous amounts of court time. It may be difficult for the parties involved in these highly conflictual disputes to understand and recognise that issues of funding and the utilisation of increasingly scant resources to attempt to continuously resolve matters brought by the parties without regard to the ability of a court to easily deal with them is a relevant consideration.
25An application for leave to institute proceedings was also heard by Thornton J in Pencious & Searle [2017] FamCA 1004. Thornton J held that the application ought to be dismissed on the basis that the affidavit material did not comply with the requirements of s 102QE(3) of the Act. In addition, that part of the application which related to matters already determined at trial (and which had not been appealed) was refused. Such an application was also heard by Berman J in In Finch [2017] FamCA 201. In dismissing the application, Berman J made the following remarks:
31.The father has not complied with s 102QE of the Act in respect of the matters that must be set out in an affidavit that supports an application for leave. These are not matters relating to the filing of an initiating application and then a consideration as to whether there has been a material change in the circumstances of the parties or the children which would properly invite the Court to have a further consideration to the parenting orders. They are matters that have been raised before but are to be seen against the background of an application for leave that is required to be considered before issues relating to the parenting considerations are able to be considered.
32.I bring to account the matters raised by the Full Court in the judgment delivered on 30 November 2016. I am of the view that there is no merit in the father’s application in a case seeking leave. I consider that there are no new issues that have been raised and that the father has not satisfied the obligations as set out under the Act before leave can or should be granted. The affidavit does not comply with the requirements of s 102QE(3) of the Act, but even if it had, there is nothing disclosed in the affidavit material which has not been the subject of considerable litigation and past judicial consideration.
Discussion and conclusions
26None of the affidavits relied upon by the mother (as set out in paragraph 2 of these Reasons) properly met the conditions required under s 102QE(3). The affidavits were by and large confused, repetitive and comprised the mother's opinions, conclusions and submissions about matters. Nevertheless, four main themes emerged as follows:
27Firstly, the mother maintained that H’s school reports evidenced that H was not thriving and in particular, was performing below his "intelligence level", was not meeting his academic potential and had gone backwards since kindergarten in 2013. I was not persuaded this was the case. I am satisfied that H’s Semester 1, 2016 report for year 3 evidenced that he was making steady academic progress: in the main receiving "B's" and "C's" for his subjects. More importantly, the report evidenced that he consistently displayed a positive approach in his attitude, behaviour and effort at school.[5] H’s Semester 2, 2017 report for grade 4 and his Semester 1, 2018 report for grade 5 revealed that H continued to make steady academic progress: again achieving "B's" and "C's" across all his grades. Again, the reports evidenced that H often displayed a positive approach in his attitude, behaviour and effort at school.[6]
[5] Refer to H’s school report for Semester 1, 2016: Annexure 6 to the mother's affidavit sworn 7 October 2016. Naplan results for 2016 revealed he was well below the rest of his cohort for spelling, grammar and punctuation.
[6] Refer to Hs school report for Semester 2, 2017: Annexure 8 to the mother's affidavit sworn 15 March 2018; and his school report for Semester 1, 2018: Annexure 7 to the mother's affidavit sworn 3 July 2018.
28Secondly, the mother maintained that H’s school reports and medical reports evidenced that H had social issues and learning issues. In addition, she maintained that H was suffering from ADHD like symptoms, which she maintained are as a result of trauma based psychological harm to H from not properly attaching to his father. I was not persuaded this was the case and considered that the mother's allegations had no evidentiary basis and were entirely speculative.
29Thirdly, the mother maintained that the father had flouted the law by allowing H to be taken to [another country] for a short holiday with her father and step mother in or about January 2017. I was not persuaded that the father did so flout the law. The father was entitled to permit H to travel outside of Australia for holidays pursuant to paragraphs 11, 12 and 13 of the final orders made on 21 November 2014, without the necessity of obtaining the mother's consent.
30Fourthly, the mother maintained that the father breached the court orders, for example, by not providing her with photos of H, but instead giving her the on-line link to buy her own school photos. I was not persuaded this was the case and considered that the mother misinterpreted the November 2014 final orders.
31The mother's affidavits and her submissions strongly indicated that she continued to be “fixated” on the same issues identified by Moncrieff J in his "vexatious litigant decision". These included:
a) The mother asserting that she had been unfairly treated by the "court system", including by the ICL and various judicial officers at first instance and on appeal, and in effect seeking to re-litigate issues that had already been determined on a final basis.
b) The mother continuing to attempt to use the court proceedings to attack the father, for example by maintaining that he was fraudulent, dishonest, misleading and had failed to disclose relevant documents.
c) The mother continuing to attempt to use the court proceedings to attack various third parties who were not supportive of her world view (for example, [the therapist] and her father and step mother), for example, by alleging that they had been dishonest and/or deceptive and/or had colluded with the father and/or had breached court orders and should be punished by the court.
32The mother has not complied with s 102QE of the Act in respect of the matters that must be set out in an affidavit that supports her applications for leave. Irrespective of this, I also considered that the mother's applications were vexatious in that: (1) she effectively sought to re-litigate matters had already been determined on a final basis; (2) she effectively sought to use the court proceedings for an improper purpose, and as an abuse of process including to harass, annoy and attack the father and various third parties; and (3) there was simply no merit in the mother's applications. Accordingly, I dismiss the mother's applications for leave to institute parenting proceedings pursuant to s 102QE of the Act.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Family Court of Western Australia.
KV
ASSOCIATE13 DECEMBER 2018
11
0