SPITERI & WALKER

[2017] FamCA 166

FAMILY COURT OF AUSTRALIA

SPITERI & WALKER [2017] FamCA 166

FAMILY LAW – CONTRAVENTION – Where Contravention Applications were made by both the mother and father alleging contraventions against the other of parenting orders – Where the applications were withdrawn.

FAMILY LAW – VEXATIOUS LITIGANTS – Where the mother is found to have instituted proceedings without reasonable grounds – Where it is ordered that the mother be restrained from filing any further contravention application without leave of the Court.

Family Law Act 1975 (Cth) s 69ZV, 70NAC, 70NFA, 70NFA(3), 70NFB, 102Q, 102QB
Evidence Act 1995 (Cth) s 140

MOTHER: Ms Spiteri

FATHER: Mr Walker

FILE NUMBER: PAC 5808 of 2008

DATE DELIVERED: 22 March 2017

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Rees J

HEARING DATE: 16 March 2017

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Matthews Folbigg Pty Ltd

SOLICITOR FOR THE RESPONDENT: G & D Lawyers

Orders

IT IS ORDERED

1. That Ms Spiteri be restrained from filing any application alleging contravention of an order of the Family Court of Australia without the leave of a Judge of the Family Court of Australia first obtained.

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 Spiteri & Walker has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: PAC 5808 of 2008

Ms Spiteri

Mother

And

Mr Walker

Father

REASONS FOR JUDGMENT

1. Listed for hearing are three applications alleging contravention of parenting orders. In two of those applications, filed 1 August 2016 and 9 November 2016, Ms Spiteri (“the mother”) is the applicant and Mr Walker (“the father”) is the respondent. In one application, filed 2 September 2016, the father is the applicant and the mother is the respondent.

2. The allegations relate primarily to parenting orders made on 12 April 2013 in relation to two children, C born in 2000 and now aged 16 years, and D born in 2006 and now aged 10 years.

3. At the commencement of these proceedings I asked each party to be prepared to make submissions in relation to their each being restrained from filing further applications without the leave of the Court, pursuant to the provisions dealing with vexatious litigants. 

4. The legal representatives of the parties indicated that they were discussing a resolution of the applications. The Court adjourned and ultimately each party withdrew her or his application and, by consent, there was no order as to costs.

5. The parties were then asked to make submissions on the issue of whether either or both of them should be restrained from bringing any further application without the leave of the Court first being obtained.

6. In order to determine the question of restraining orders, it is necessary to detail the history of the litigation, particularly the contravention applications.

7. These parties have a long history of dispute. The Court file shows that the proceedings were commenced by the mother in 2008 and resolved in December 2008 when the mother’s application was withdrawn.

8. A further application for final orders was filed by the mother on 21 March 2011. Those proceedings were determined by Consent Orders made 12 April 2013.

9. A third application for final orders was filed by the mother on 2 April 2014. That application is awaiting hearing by the Family Court of Australia at Parramatta and will be listed shortly.

10. The parties are not strangers to contravention proceedings.

11. There have been at least 13 applications alleging contravention filed since 2011, including the present applications. At least 10 of those applications have been filed by the mother. It is necessary to examine the previous applications because the Court has to determine whether to deal with the applications pursuant to the provisions of Subdivision E (of Division 13A of Part 7) (“less serious contravention”) or Subdivision F (“more serious contravention”).

12. The history of those applications as contained in the Court record is set out below.

13. The father filed a Contravention Application on 15 December 2011.

14. The father filed a further Contravention Application on 2 February 2012. Both of the father’s applications were withdrawn and dismissed on 14 February 2012.

15. The mother filed a Contravention Application on 19 August 2013, alleging nine contraventions, and a second Contravention Application on 20 August 2013, alleging at least four contraventions. Those applications were dealt with by Judge Donald of the Federal Circuit Court on 20 December 2013. In relation to the application filed 19 August 2013, four counts were withdrawn and dismissed, three counts were dismissed and two counts were proved. In relation to the application filed 20 August 2013, alleging at least four contraventions, one count was proved and the balance were either dismissed or summarily dismissed. His Honour ordered both the parents to attend a parenting course nominated by the Manager, Child Dispute Services of the Parramatta Registry.

16. The mother filed a further Contravention Application, alleging nine contraventions, on 3 March 2014. That application was dismissed by Gill J on 28 June 2016.

17. The mother filed a further Contravention Application, alleging one count, on 10 April 2014. That application was heard by Gill J on 28 June 2016 and dismissed.

18. The mother filed a further Contravention Application on 23 July 2014, alleging eight counts. That application was heard by Gill J on 28 June 2016. His Honour dismissed the first count. I assume that his Honour declined to charge the father on the next five counts. The seventh count was proven but his Honour found that the father had a reasonable excuse. There was no order as to costs.

19. The mother filed a further Contravention Application on 3 November 2014. That application was heard by Gill J on 28 June 2016. Of a total of 16 allegations, seven counts were dismissed. One count was proved. I assume that his Honour declined to charge the father with the balance of the allegations. There was no order as to costs and his Honour reserved judgment on the issue of consequential orders.

20. The mother filed a further Contravention Application on 1 June 2015, alleging 13 counts of contravention. Counts 1, 2, 3, 9 and 13 of that application were heard by Gill J on 28 June 2016. His Honour dealt with the balance of the application on 12 August 2016. That application, in so far as the father was charged, was dismissed.

21. The mother filed a further Contravention Application on 11 August 2015, alleging 10 counts of contravention. Counts 1, 2, 5, 7 and 10 of that application were heard by Gill J on 28 June 2016. The balance of the application was considered by Gill J on 12 August 2016. The application was dismissed and the mother was ordered to pay the father’s costs.

22. The mother filed two further applications on 1 August 2016 and 9 November 2016. Those applications were the subject of this hearing.

23. The father filed a further application on 2 September 2016 and that application was also to be heard today.

24. In order to determine whether the present contraventions, if they had proceeded, should be dealt with as “more serious”, it was necessary to consider the provisions of s 70NFA of the Family Law Act 1975 (Cth) (“the Act”).

FAMILY LAW ACT 1975 - SECT 70NFA

Application of Subdivision

(1)  Subject to subsection (2), this Subdivision applies if:

(a)  a primary order has been made, whether before or after the commencement of this Division; and

(b)  a court having jurisdiction under this Act is satisfied that a person has, whether before or after that commencement, committed a contravention (the current contravention ) of the primary order; and

(c)  the person does not prove that he or she had a reasonable excuse for the current contravention; and

(d)  either subsection (2) or (3) applies.

Note:          For the standard of proof to be applied in determining whether a contravention of the primary order has been committed, see section 70NAF.

(2)  For the purposes of paragraph (1)(d), this subsection applies if:

(a)  no court has previously:

(i)  made an order imposing a sanction or taking an action in respect of a contravention by the person of the primary order; or

(ii)  under paragraph 70NEB(1)(c), adjourned proceedings in respect of a contravention by the person of the primary order; and

(b)  the court dealing with the current contravention is satisfied that the person has behaved in a way that showed a serious disregard of his or her obligations under the primary order.

(3)  For the purposes of paragraph (1)(d), this subsection applies if a court has previously:

(a)  made an order imposing a sanction or taking an action in respect of a contravention by the person of the primary order; or

(b)  under paragraph 70NEB(1)(c), adjourned proceedings in respect of a contravention by the person of the primary order.

(4)  This Subdivision does not apply if the court dealing with the current contravention is satisfied that it is more appropriate for that contravention to be dealt with under Subdivision E.

(5)  This Subdivision applies whether the primary order was made, and whether the current contravention occurred, before or after the commencement of this Division.

1. As can be seen, the provisions of s 70NFA(3) are invoked. A Court has previously made orders for the parties to attend a parenting course and made orders for costs.

2. Thus, the applications before the Court must be treated as more serious contraventions and the more serious penalties provided by s 70NFB, which include imposition of a fine, requiring a party to enter into a bond and the possible imposition of a sentence of imprisonment.

3. Consequently, upon the finding that the contraventions should be dealt with as “more serious”, the provisions of s 140 of the Evidence Act 1995 (Cth) (“Evidence Act”) are invoked:

EVIDENCE ACT 1995 - SECT 140

Civil proceedings: standard of proof

(1)  In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.

(2)  Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:

(a)  the nature of the cause of action or defence; and

(b)  the nature of the subject-matter of the proceeding; and

(c)  the gravity of the matters alleged.

THE PRESENT PROCEEDINGS

1. Although each of the three applications have been withdrawn, it is necessary to consider the applications, and whether there were reasonable grounds in relation to each application, in relation to the question of whether either party is a vexatious litigant. I propose to deal with the applications filed by the mother first, and then the father’s application.

2. In order to understand the allegations, it is necessary to set out the orders said to have been contravened.

THE ORDERS

1. The form of Orders made on 12 April 2013 incorporated, in Order 2, the Terms of Settlement (“the Terms”) to which the parties agreed. For convenience, the Orders will be referred to as “Order X of the Terms” where the order alleged to have been breached is contained in the Terms.

2. The Terms are reproduced below, in so far as they are relevant.

   2.That the parties have equal shared parental responsibility  for the children [named] …

   …

   12.That each party obtain and maintain at their own expense a complete school uniform for both [C] and [D]. Such school uniform is to include both the standard school uniform and all associated items that form part of the child’s school kit.

   13.That each party ensures that each child return to the other parent’s residence with the school uniform (as defined in Order 12) provided by that parent at the commencement of time.

   …

   19.Neither party shall denigrate the other in the presence or hearing of the children and shall use their best endeavours to ensure third parties do the same.

3. The mother also alleges breach of Order 8 made on 2 June 2016 which provides:

   8.That upon [Dr B] providing to both the mother and father, by ordinary pre-paid post, written confirmation as to the results of such testing and his written confirmation that as a consequence either or both children are in his opinion not precluded from SCUBA diving or any other breathing assisted waterborne activity the father shall be at liberty to engage either or both of the children as applicable in SCUBA diving and/or breathing assisted waterborne activities.

DEFINITION OF CONTRAVENTION

1. It is also necessary to understand the definition of “contravention” which is set out in s 70NAC of the Act:

FAMILY LAW ACT 1975 - SECT 70NAC

Meaning of contravened an order

A person is taken for the purposes of this Division to have contravened an order under this Act affecting children if, and only if:

(a)  where the person is bound by the order--he or she has:

(i)  intentionally failed to comply with the order; or

(ii)  made no reasonable attempt to comply with the order; or

(b)  otherwise--he or she has:

(i)  intentionally prevented compliance with the order by a person who is bound by it; or

(ii)  aided or abetted a contravention of the order by a person who is bound by it.

1. Thus it is clear, that a mere failure to comply with an order may not constitute a contravention. It is necessary to establish that the failure was intentional or that no reasonable attempt was made to comply with the order.

THE MOTHER’S CONTRAVENTION APPLICATION FILED 1 AUGUST 2016

1. The mother’s evidence in relation to this application is contained in her affidavit sworn 1 August 2016. Each allegation is set out below and the evidence examined.

2. In some of the allegations, the evidence upon which the mother relies is hearsay evidence from a child. That evidence is admissible pursuant to the provisions of s 69ZV of the Act. However, it is to be given such weight as the Court determines. The weight to be given to that evidence, which cannot be tested, must be considered in the context of the provisions of s 140 of the Evidence Act.

That on 10 May 2016, the father removed D from school “in the mother’s time with D” in contravention of Order 2 of the Terms

1. The evidence of the mother in relation to this alleged breach is found at paragraphs 38 to 63 of the mother’s affidavit sworn 1 August 2016.

2. On 14 March 2016, the Court made the following notations:

   IT IS NOTED THAT:

   A.During the period of the adjournment it is proposed that the children will attend upon their treating practitioner [Dr F] for the purposes of discussing with the children’s GP the parties’ respective views as to the children or either of them suffering from asthma such as would prevent them or either of them from undertaking recreational scuba diving.

   B.The parties will request the children’s GP to provide a referral to [Dr B] paediatric respiratory physician for further assessment and if necessary testing of the children as to whether they suffer from asthma such as would disentitle them from participating in recreational scuba diving.

3. The father arranged appointments for 10 May 2016. The father’s solicitor notified the mother of the appointments.

4. The mother responded that, as D’s appointment was for 12 noon, she would permit the father to collect D from school at 11.00 am.

5. The mother dropped D at school on 10 May 2016. The father attempted to take D for her appointment. The mother objected. Teachers intervened. The father said he needed to leave by 9.30 am to attend the appointment with D. The mother agreed that D could leave at 10 am. The father insisted that he leave at 9.30 am.

6. The police were called and attended. The mother told the police that she no longer consented to the father taking D to the appointment.

7. The mother deposed that she then agreed that the father could leave with D at 9.30 am.

8. Having regard to the terms of the Notation made on 14 March 2016, the father was entitled to take D to the appointment. Nothing in the Notation required him to do so on a day she would ordinarily have been in his care.

9. The mother was informed of the appointment.

10. The mother ultimately agreed that the father could leave with D at 9.30 am.

11. There is no evidence that the father’s actions on 10 May 2016 constituted a breach of Order 2 of the Terms.

12. No prima facie case could have been established in relation to the first charge.

13. The second alleged breach relates to Order 13 of the Terms. The allegations are multiple and are dealt with individually.

That on 18 August 2015, the father without reasonable excuse, withheld D’s school sport shirt, school hat and mouthguard purchased by the mother

1. In relation to the mouthguard, there is no evidence that establishes that the mouthguard forms part of the “school kit” in accordance with Order 13 of the Terms.

2. The mother, at paragraph 8 of her affidavit, deposed that D’s hat and sport shirt were not returned.

3. There is no evidence to support the contention that the failure to return was intentional or that no reasonable attempt was made to return the items.

4. The father would not have been charged with this count.

That on 5 February 2016 the father without reasonable excuse withheld C’s school shoes and orthotics purchased by the mother

1. The evidence of the mother is found at paragraph 31 of her affidavit. She deposed that C returned to her care without his shoes and orthotics.

2. In February 2016, C was aged 15 years. Whether the failure to return the items was due to the father or to C is not established.

3. There is no evidence to support the contention that the failure to return was intentional or that no reasonable attempt was made to return the items on 5 February 2016.

4. The father would not have been charged with this count.

That on 13 May 2016 the father without reasonable excuse withheld C’s school sport shirt and school sport shoes purchased by the mother

1. The mother’s evidence is found at paragraph 76 of her affidavit.

2. There is no evidence to support the contention that the failure to return was intentional or that no reasonable attempt was made to return the items on 13 May 2016.

3. The father would not have been charged with this count.

That on 7 June 2016 the father without reasonable excuse withheld D’s belongings purchased by the mother including D’s school sport shirt, school sport shorts, mouthguard, and a new keepsake

1. The mother’s evidence is found at paragraph 78 of her affidavit.

2. There is no evidence that the mouthguard and keepsake form part of the “school kit”.

3. The mother’s evidence in relation to the other items is that the items were not returned.

4. The mother deposed:

   Most concerning about this issue was [D’s] disclosure to me that the respondent had deliberately kept the items in response to the previous day as her school had refused to write a letter supporting a fabrication by him that I had previously withheld a school dress purchased by him.

5. No weight could be given to this compilation of hearsay, conclusion and opinion from a child.

6. There is no evidence to support the contention that the failure to return was intentional or that no reasonable attempt was made to return the items on 7 June 2016.

7. The father would not have been charged with this count.

That on 24 June 2016 the father without reasonable excuse withheld C’s school pants and school shirt purchased by the mother

1. The mother’s evidence in relation to this allegation is found at paragraph 86 of her affidavit.

2. She relies on a conversation with C where he told her that the father refused to allow C to take the items to school. C was going on an excursion that day. C was to return to live with his mother after school on Friday pursuant to the orders.

1. Setting aside the issue of whether the hearsay evidence of a child could be given sufficient weight to ground a finding of a prima facie case in a more serious contravention, there is no evidence that the father withheld C’s uniform items on Friday afternoon.

2. The father would not have been charged with that count.

That on 8 July 2016 the father without reasonable excuse withheld D’s school bag and its contents purchased by the mother

1. The mother’s evidence is found at paragraphs 92 to 96 inclusive of her affidavit.

2. The mother deposed that she “recorded”, presumably meaning filmed or otherwise video recorded, the return of the children. She does not suggest that she asked either the children or the father for their consent to her so doing.

3. The mother deposed to a conversation with D, as D was leaving the father’s house, as follows:

   As the children were exiting [the father’s] residence I immediately stated: ‘[D’s] got no school bag’.

   I then asked [D] – ‘Where’s your school bag? you need your school bag!’

   [D] responded – ‘Dad said I go back to school with him so he’s keeping it’.

   I said – ‘It doesn’t matter it came from home’.

   [D] responded – ‘I tried to tell him that, he didn’t listen’.

   I said – ‘So he wouldn’t give it to you?’

   [D] responded – ‘No he didn’t listen’.

   I said – ‘What did he say?’

   [D] said – ‘He said since I start back at school with him to leave it at his house’.

   I said – ‘That’s not how it works. I bought that school bag’.

   [D] responded – ‘yeah I know’.

4. The mother sent an email to the father’s solicitor to the effect that if the school bag and contents were not returned by the close of business on the following Monday, she would institute contravention proceedings.  

5. The father’s solicitor responded the following day to the effect that D’s bag was in the father’s car and that he would drive to the mother’s house the following day and have C drop the bag off. The father did not return the bag the following day but did so some days later.

6. The only evidence which could establish that the father’s failure to return the bag was intentional is that contained in the conversation set out above. There could be no opportunity for the father to test the evidence. For the reasons that I have already canvassed, the hearsay statement of the child would be unlikely to be given such weight as to ground a prima facie case where serious penalties could result.

7. In any event, the father did return the bag.

8. The father would not have been charged with this count.

9. The third alleged breach also contains multiple allegations. The allegations are dealt with individually.

That on 4 December 2015 the father, without reasonable excuse, denigrated the mother by instructing C to write denigrating text messages to the mother

1. The offending text messages are annexed to the mother’s affidavit. The text of which the mother complains reads “…pleses (sic) drop the medicine off in my letter (sic), it will take an hour out of your friday night then you can go get wasted with your friends”.

2. The text message was sent from the father’s phone.

3. The mother’s evidence is found at paragraph 26 of her affidavit. The mother instituted a conversation with C as follows:

   I said – [C] ‘He was getting you to send those texts wasn’t he?’

   [C] responded – ‘The texts, yeah I sent the texts’.

   I said – ‘Who does he think he is saying that I’m going to get wasted with my friends, like who does he think he is getting you to write that? that’s not okay for him to be telling you to write that. What did you think when he was telling you to write that?’         

   [C] responded – ‘Hmm? he … said he was going to write that, he actually wrote that himself, I said no, I’m not writing it. I don’t know if he got his dad or someone else…’

   I said – ‘But he did ask you to write it?’

   [C] responded – ‘Yeah I didn’t write it’.

   I said –‘So he asked you to write about me being wasted and you said no?’

   [C] responded – ‘Yeah’.

4. Thus the mother relies entirely on hearsay evidence from a child. That evidence is admissible pursuant to the provisions of s 69ZV of the Act. However, it is to be given such weight as the Court determines. As will be seen from the mother’s evidence of the conversation upon which she relies, the relevant parts of the conversation consist of leading questions. Little weight could be placed on the statements made by the child in the circumstances detailed by the mother.

5. I would have declined to find that, on the basis of that hearsay evidence alone, there was a prima facie case.

6. There are three further allegations contained in this charge.

That on 29 January 2016 the father, without reasonable excuse, denigrated the mother by falsely telling both children that the mother had been charged by police

1. The mother’s evidence is found at paragraphs 29 and 30 of her affidavit.

2. She asserts that the father told the children that she had been charged with leaving the scene of an accident. The mother asserts, but has not proved, that she was not charged. The onus is upon the mother to establish that what the father said was false.

3. The mother’s evidence does not establish a breach. The father would not have been charged with this count.

That on 7 June 2016 the father, without reasonable excuse, denigrated the mother by telling D who was refusing to attend a doctor ‘your mother will be locked up if you don’t do what dad says about diving’

1. Taken at its highest, the mother’s allegations do not constitute a breach of Order 19 of the Terms. The father would not have been charged with this count.

That on 9 July 2016 the father’s girlfriend without reasonable excuse, denigrated the mother by saying to the children words to the effect ‘Is your mum still going to uni or has she finally accepted she’s too stupid?’

1. The affidavit evidence of the mother at paragraph 105 is that the children told her on 8 July 2016 that the father’s girlfriend made that statement.

2. Even if that were so, there is no evidence that the father was present or that he failed to use his best endeavours to encourage his girlfriend not to make the statement.

3. The mother’s evidence does not establish any breach and the father would not have been charged with this count.

MOTHER’S APPLICATION FILED 9 NOVEMBER 2016

1. In this application, the mother alleges three breaches of orders. The mother’s evidence is found in her affidavit sworn 9 November 2016.

That on 4 November 2016 the father instructed D to participate in the activity of scuba diving in his neighbours’ swimming pool

1. The mother’s evidence is found at paragraphs 16 and 17 of her affidavit. She deposed that on 8 November 2016 she had a conversation with D where D said that she had been swimming in the neighbours’ pool. The mother deposed:

   …she told me that the father had to test the weights and regulator for scuba diving for the following day. I then asked [D] if she had been using the scuba diving air and she said words to the effect, “only for a while, it was mainly the snorkel”. At this point I told her that I knew she hadn’t been entirely honest with me earlier when she said she’d only been using the supplied air on Saturday for a few minutes. She started to become upset and said words to the effect “I’m sorry mum, dad just won’t listen when I tell him no”. I am now aware that a regulator is the mouthpiece that connects to the supplied air for scuba diving.

2. The mother did not assert that D said she used the regulator. D did not tell the mother that the father instructed her to do anything. D did not say where or how she used the “supplied air”.

3. Taking her evidence at its highest, the mother has not established that the father instructed D to participate in scuba diving.

4. No prima facie case could have been established in relation to this allegation.

That on 5 November 2016, the father instructed D to participate in the activity of scuba diving at M Aquatic Centre

1. The mother deposed that on an unspecified day, D disclosed to her details about her father having taken her to M Aquatic Centre and insisting that she scuba dive. She deposed, “[D] further went on to explain that her father had said words to the effect, ‘don’t tell your mother’.”

2. The mother says that D disclosed “very specific details” to her about going to M Aquatic Centre with the father, but does not elaborate on what those details are.

3. At its highest, the mother’s evidence has not established that the father instructed D to scuba dive.

4. The father would not have been charged in relation to this count.

That on 4 November 2016 the father instructed D to participate in the activity of supplied air snorkelling and snorkelling at his neighbours’ swimming pool

1. The mother’s evidence in relation to this allegation is set out above.

2. There is no evidence that the father instructed D to engage in supplied air snorkelling.

3. The phrase “breathing assisted waterborne activity” in Order 8 made 2 June 2016 is not defined. The evidence does not establish that snorkelling is an activity which is “breathing assisted”.  

4. The mother could not have established a prima facie case in relation to this allegation.

THE FATHER’S APPLICATION FILED 2 SEPTEMBER 2016

1. One contravention is alleged by the father in this application.

That on 26 August 2016 the mother failed to provide D for changeover at her residence so that the father could spend time with D as the child was not at school that day

1. The father’s evidence is found at paragraphs 11 and following, of his affidavit sworn 30 August 2016. The father arrived at the mother’s home to collect D. He texted her to say he had arrived. He waited until 5.30pm. D did not come to him.

2. The next day, D was scheduled to play football. The father went to the game. D played.

3. A prima facie case in relation to that allegation could have been established.

THE LAW IN RELATION TO VEXATIOUS LITIGANTS

1. The provisions of s 102QB allow the Court of its own motion to make an order which has the effect of restraining a party from filing any further application without the leave of the Court first obtained. The provisions of s 102QB are set out below:

FAMILY LAW ACT 1975 - SECT 102QB

Making vexatious proceedings orders

(1)  This section applies if a court exercising jurisdiction in proceedings under this Act is satisfied:

(a)  a person has frequently instituted or conducted vexatious proceedings in Australian courts or tribunals; or

(b)  a person, acting in concert with another person who is subject to a vexatious proceedings order or who is covered by paragraph (a), has instituted or conducted vexatious proceedings in an Australian court or tribunal.

(2)  The court may make any or all of the following orders:

(a)  an order staying or dismissing all or part of any proceedings in the court already instituted by the person;

(b)  an order prohibiting the person from instituting proceedings, or proceedings of a particular type, under this Act in a court having jurisdiction under this Act;

(c)  any other order the court considers appropriate in relation to the person.

Note:          Examples of an order under paragraph (c) are an order directing that the person may only file documents by mail, an order to give security for costs and an order for costs.

(3)  The court may make a vexatious proceedings order on its own initiative or on the application of any of the following:

(a)  the Attorney-General of the Commonwealth or of a State or Territory;

(b)  the appropriate court official;

(c)  a person against whom another person has instituted or conducted vexatious proceedings;

(d)  a person who has a sufficient interest in the matter.

(4)  The court must not make a vexatious proceedings order in relation to a person without hearing the person or giving the person an opportunity of being heard.

(5)  An order made under paragraph (2)(a) or (b) is a final order.

(6)  For the purposes of subsection (1), the court may have regard to:

(a)  proceedings instituted (or attempted to be instituted) or conducted in any Australian court or tribunal; and

(b)  orders made by any Australian court or tribunal; and

(c)  the person's overall conduct in proceedings conducted in any Australian court or tribunal (including the person's compliance with orders made by that court or tribunal);

including proceedings instituted (or attempted to be instituted) or conducted, and orders made, before the commencement of this section.

1. The definition of vexatious proceedings is found at s 102Q of the Act:

   "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.

2. As can be seen from the examination of the mother’s contravention applications, which is set out above, she has instituted proceedings containing numerous allegations which had no reasonable ground of success. In the 10 separate applications she has instituted, containing multiple allegations and alleging not less than 70 separate counts of contravention, she has succeeded in four counts which resulted in an order that both she and the father attend a parenting course. The Court declined to charge the father in relation to numerous counts because the evidence did not establish a breach.

3. In relation to the mother’s applications which were before the Court on 16 March 2017, alleging a further 14 counts of contravention, which have been examined earlier in these reasons, they would have been similarly unsuccessful.

4. In the absence of cross-examination, I am not able to determine whether the mother instituted the proceedings “to harass or annoy, to cause delay or detriment, or for another wrongful purpose”.

5. However, I am satisfied that, on numerous occasions, the mother has instituted proceedings without reasonable grounds.

6. I am satisfied that the mother has frequently instituted vexatious proceedings in the Family Court of Australia.

WHAT ORDER SHOULD BE MADE?

1. The mother’s solicitor, who was not instructed to appear in the contravention proceedings, but nevertheless appeared to assist the Court, submitted that the order should be that the mother be restrained from instituting any application for contravention unless that application was filed by a legal representative.

2. The father’s solicitor submitted that the mother should be restrained from instituting any application for contravention without leave.

3. The submission made on behalf of the mother assumes that the mother will instruct and retain solicitors who will give her proper advice and that she will accept their advice.

4. There is no evidence on which that assumption could be made.

5. I propose to make an order that the mother be restrained from filing any further application alleging the contravention of any order of the Family Court of Australia unless she is granted leave to do so by a Judge of the Family Court of Australia.

6. The solicitor for the father submitted that there was no evidence to base a similar order being made in relation to the father.

7. I accept that submission. The two contravention applications brought by the father in December 2011 and February 2012 were withdrawn by him on 14 February 2012.

8. The only other application that the father has filed is that filed on 2 September 2016 in relation to which a prima facie case could have been found.

9. No order will be made in relation to the father.    

I certify that the preceding one hundred and twenty-five (125) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 22 March 2017.

Associate: 

Date:  22 March 2017