Sullivan and Tyler (No 2)
[2013] FamCA 271
FAMILY COURT OF AUSTRALIA
| SULLIVAN & TYLER (NO. 2) | [2013] FamCA 271 |
| FAMILY LAW – CHILDREN – interim – where the mother seeks increased communication with the child – where Loughnan J has previously made two sets of orders in relation to telephone communication – where the Court was unable to find there has been a demonstrated change in circumstances – alternatively, where the current arrangements are in the child’s best interests – application dismissed FAMILY LAW – PROCEDURE – vexatious litigant – where the father seeks an injunction pursuant to s 118 – where the proceedings were held to be vexatious – where it was appropriate to restrain the mother from instituting further interim parenting proceedings without leave |
| Family Law Act 1975 (Cth) |
| Attorney General (NSW)v Wentworth (1988) 14 NSWLR 481 Ruddock & Robins [2007] FamCA 1181 |
| APPLICANT: | Ms Sullivan |
| RESPONDENT: | Mr Tyler |
| INDEPENDENT CHILDREN’S LAWYER: | Christos Christaki |
| FILE NUMBER: | SYC | 889 | of | 2008 |
| DATE DELIVERED: | 19 April 2013 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Watts J |
| HEARING DATE: | 10 April 2013 |
REPRESENTATION
| SOLICITOR FOR THE APPLICANT: | Litigant in person |
| SOLICITOR FOR THE RESPONDENT: | KDB Holmes Solicitors |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW |
Orders
The mother’s Application in a Case filed 8 February 2013 be dismissed.
Pursuant to s 118(1)(c) Family Law Act 1975 (Cth) or alternatively Rule 11.04(1) Family Law Rules 2004 (Cth), the mother shall not institute any further interim proceedings under the Family Law Act for parenting orders or any other orders in relation to the child D without leave of the Family Court of Australia.
Pursuant to s 114(3) Family Law Act 1975 (Cth), subject to any further order of the Court granting permission, the mother shall be restrained from serving upon the father and the Independent Children’s Lawyer any application for leave to institute any further proceedings under the Family Law Act1975 (Cth) for parenting orders and/or any other orders in relation to the child D.
Except for any appeal against these orders, a Judge be appointed to manage any further application filed in relation to the child D (and in particular, any application for leave by the mother pursuant to order 3 or for permission to serve any such application upon the father and Independent Children’s Lawyer pursuant to order 4) and that until further order that Judge be Justice Watts, if he is reasonably available.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Sullivan & Tyler has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: SYC 889 of 2008
| Ms Sullivan |
Applicant
And
| Mr Tyler |
Respondent
REASONS FOR JUDGMENT
INTRODUCTION
The mother’s application is for variation of an order for telephone communication made by Loughnan J. The mother also seeks further orders in relation to communication with the child via letters and email.
The father’s primary position is that the mother’s application be dismissed. The father’s alternative positions are that the mother’s application be adjourned and heard as part of the final hearing, or that all orders for telecommunication be set aside pending the final hearing.
The father also seeks that the mother be restrained from initiating any further proceedings pursuant to s 118 Family Law Act 1975 (Cth) (“FLA”). Alternatively, he seeks an order that any further interim applications be adjourned and heard as part of the final hearing.
HISTORY OF ORDERS RELATING TO TELECOMMUNICATION BETWEEN THE CHILD AND HIS MOTHER
On 18 August 2011, Loughnan J ordered, inter alia, the mother was to have telephone communication with the child at 5pm on Mondays and Wednesdays.
On 22 November 2011, Loughnan J made, inter alia, an order in the following terms:
2. That the child have telephone communication with the mother each Monday and Wednesday between 5:00 pm and 6:30 pm and that such communication be implemented by the mother sending the father an SMS message not later than 24 hours prior to the time for telephone communication indicating the time between the hours of 5:00 pm and 6:30 pm at which the communication should occur, and by the father then initiating that communication for the child.
I did not have in evidence before me the actual application that was before Loughnan J on that day but there undoubtedly was one given that his Honour provided the following reasons:
49. The other order sought is an order proposed in relation to telephone communication. The mother did not address this in submissions. The father says that would be okay, but seeks to reverse the obligation so that the mother sends an SMS message about the time that she would like a phone call between those hours and then he would be responsible [for] facilitating that. That seems like a practical suggestion…
The orders of Loughnan J were the subject of an appeal by both parties, although neither party appealed Loughnan J’s order for telecommunication. It was conceded by the mother that her Notice of Appeal filed 19 December 2011 did not contain any ground of appeal in relation to that order, notwithstanding what might be implied by the mother’s written submissions dated 25 March 2013 (exhibit AA) which said:
On 19 December 2011 I filed an appeal against the 22 November 2011 orders. A newly qualified solicitor offered to represent me at the appeal on a pro bono basis. The solicitor advised me to abandon my grounds of appeal and seek only to cross examine [Dr W]. I accepted this advice and filed an amended notice of appeal on 1 March 2012. I believe I was poorly advised. As a consequence I did not effectively appeal the orders made on 22 November 2011.
The mother subsequently made an application before me on 15 November 2012 seeking, inter alia, that the child live with her pending a final hearing, or alternatively that the child spend half of each week with the mother. No application was made at that time for any change to the telephone order. I heard that interim application on 22 November 2012 and I delivered my Orders and Reasons for Judgment on 30 January 2013.
The mother prepared the application which is now before me in December 2012 and sent it to the Registry. It was sent to my chambers whilst I was absent. It was accepted for filing on 8 February 2013.
DOCUMENTS RELIED UPON
The mother relies on:
10.1. Application in a Case filed 8 February 2013
10.2. Mother’s affidavit affirmed 24 December 2012
The father relies on:
11.1. Response to an Application in a Case filed 9 April 2013
11.2. Father’s affidavit sworn 8 April 2013
I also had before me four exhibits:
12.1.the mother’s written submissions entitled “Submissions 25 March 2013: in support of Affidavit filed 8 February 2013”;
12.2. Justice Loughnan’s Reasons for Judgment dated 22 November 2011;
12.3. My Reasons for Judgment dated 30 January 2013;
12.4.the mother’s written submissions entitled “Submissions 10 April 2013 – Vexatious Litigant – Phone/email/letter contact”.
CHANGED CIRCUMSTANCES?
The lawyer for the father asked me to consider “the Rice & Asplund principles” (referring to the case Rice & Asplund (1979) FLC 90-725). He submitted that “disregard[ing] the extraneous material from the mother’s affidavit; complaints of a general nature or matters relating to irrelevant or prior history, there isn’t much left that shows that there’s a significant change in the circumstances.”
Put simply, if a court has decided what set of interim parenting orders are appropriate pending a final hearing, new or repeated applications should not be lightly entertained given the disruption caused by further litigation unless some changed circumstance is demonstrated that would lead to the conclusion that it is in the child’s best interests to do so. This notion applies to further interim applications relating to interim orders as much as it does to interim applications seeking to change final orders (see Kay J (sitting as a Full Court) in Ruddock & Robins [2007] FamCA 1181 at paragraph 37).
In order to be persuaded to alter the existing interim orders, I must be satisfied that there has been a significant change in the child’s circumstances since Loughnan J decided the matter in November 2011. In the context of an interim hearing, whilst having regard at all times to what is in the child’s best interests, in order to determine if there has been a significant change in circumstances, I am primarily concerned with matters that are uncontroversial or matters where objective evidence wholly points in one direction.
The mother submits the primary change in circumstances she relies upon is what she asserts to be the deterioration in the child’s mental status. She points to evidence she gave in the hearing on 22 November 2012 regarding the child’s behaviour, his psychiatric diagnoses and commencement on medication, as well as his changes in schooling.
As I indicated in my Reasons dated 30 January 2013:
72. In reply the father’s lawyer says that it will be the father’s case at the final hearing that there has been an improvement in [the child] in the last twelve months.
…
74. It is almost impossible, without a proper airing and testing of the material that I have been given, to make any assessment as to which parent’s assertion about the child’s psychological health and schooling is accurate. It is likely at the final hearing the court will have the assistance of evidence from a single expert appointed under Chapter 15 [Family Law Rules 2004 (Cth)].
As is clear from paragraph 26 of Loughnan J’s Reasons dated 22 November 2011, his Honour was cognisant that the child had significant behavioural problems.
I am unable, on an interim basis, to conclude the primary change asserted by the mother exists.
The next changed circumstance the mother asserts is that the father has failed to facilitate telephone communication between the mother and the child. Although the mother asserts the father has failed to facilitate telephone communication on “numerous occasions”, her affidavit material points to one occasion in particular where she says the father did not respond to two text messages she sent to him on 17 and 18 December 2012 in relation to telephone contact with the child on Wednesday 19 December 2012. The father denies he received any text messages from the mother on those two days.
The last page of Annexure B to the mother’s affidavit contains a print out from the mother’s mobile phone provider Amaysim. The mother sent a text message on 17 December 2012 to … 416 …. On 18 December 2012 she sent a text message to … 460 …. It is clear these are different phone numbers. The father asserts in his affidavit that neither of those telephone numbers are his number. The mother conceded that one of the numbers was not the father’s but she asserted that “the second number” (I inferred the mother meant the number to which she sent a text message on 18 December 2012) was correct. I have no evidence as to the father’s actual mobile phone number. It appears that neither of the phone numbers to which the mother sent text messages constitutes a complete phone number.
I am unable in the context of this interim application to say whether or not the mother is correct.
The application the mother currently presses was not canvassed before me when the mother asked me to revisit the interim orders on 22 November 2012 (see my Reasons dated 30 January 2013). Her failure to raise this issue during that hearing tends to suggest that the catalyst for this application was the two text messages in December 2012, rather than any systemic failure by the father to comply with the existing order that was made by Loughnan J.
In relation to the mother’s interim application to vary the telecommunication order, the mother has not established by independent evidence which wholly supports her view or excludes the father’s view that any significant change has occurred since Loughnan J made the initial interim orders that would warrant me changing them.
In the event I am wrong about approaching the matter in that way, the Independent Children's Lawyer submitted that the existing order is perfectly workable. The mother says it is not workable because her commitments at university and her attendance at meetings sometimes mean she is unable to make the call at the time that she has previously indicated that she could and she wants a greater window of flexibility. She submits that in many orders that flexibility exists. I am not persuaded without full and proper testing as to how the order is working, that the existing order on an interim basis needs to be changed again.
The mother’s affidavit (and submissions) provides a large volume of material that is not specifically relevant to the interim application which she asks me to decide.
Apart from the threshold question, the father opposes the mother’s application because he says the mother communicates inappropriately with the child.
Paragraph 40 of the father’s affidavit says:
The phone calls from the Applicant to [the child] in recent months have included these remarks:
“The authorities are very sorry now that they put mummy into prison.”
“Mummy will soon be seeing [the child] twice each week.”
“We’re all working very hard to have you come to mummy’s house.”
“We’re all working very hard to have you come to Uncle …’s house.”
“Next year mummy is going to arrange for you to come to Perth with mummy for Christmas.”
The father’s solicitor raised these allegations in general terms with the mother in a letter dated 23 October 2012 (Annexure A to the mother’s affidavit). The mother denied the specifics of the allegations, but she acknowledged at paragraph 8 of her affidavit, that she “certainly [does] give [the child] hope that things will be different in the future”. She says that “it would clearly be cruel not to.”
In the context of this interim hearing, I am unable to say whether the mother has or has not communicated with the child in an inappropriate manner.
The mother’s application for written communication with the child
The mother also seeks that she be at liberty to send emails and letters to the child. She seeks the father facilitate the child receiving those emails and letters, and facilitate the child’s response to such material.
The father says that the child is reluctant to write and that the child complains “that writing hurts his hands.” The father also deposes that “[The child] doesn’t know how to use a keyboard to write words yet.”
The mother has not previously in two interim hearings sought orders of this nature and there is no indication as to what has changed. If I am wrong about not lightly entertaining the mother’s application unless some changed circumstance is demonstrated, I also take into consideration the evidence from the father (again untested) about the difficulties that the child might have with an order for email communication. I have no ability to judge what weight should be given to those assertions by the father but I am of the view that the level of interaction between the child and the mother and the circumstances in which that interaction takes place that have already been judged to be in the child’s best interests continue to be in the child’s best interests.
It is my desire that the court has the opportunity to hear this matter on a final basis some time this year.
SECTION 118 APPLICATION
The father seeks that the mother be restrained from instituting further interim proceedings without the Court’s leave.
The power to make the order sought by the father is found in both s 118(1)(c) FLA and in rule 11.04(1) Family Law Rules 2004 (Cth) (“FLR”).
Section 118(1)(a) to (c) FLA provides:
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.
The word “proceedings” is defined in s 4 FLA as follows:
Proceedings means a proceeding in a court, whether between parties or not, and includes cross proceedings or an incidental proceeding in the course of or in connection with a proceeding.
Rule 11.04(1) FLR is in the following terms:
If the court is satisfied that a party has frequently started a case or appeal that is frivolous, vexatious or an abuse of process, it may:
(a) dismiss the party's application; and
(b) order that the party may not, without the court's permission, file or continue an application.
The words “frivolous” and “vexatious” are not defined by the FLA.
An Explanatory Guide (accompanying but not forming part of the FLR) provides the following explanation of the words “frivolous” and “vexatious”:
frivolous— not worthy of serious consideration, insupportable in law, disclosing no cause of action or groundless (see also vexatious).
vexatious, in relation to an application — having no reasonable prospect of success (see Section 118 of the Act for the court’s powers in relation to a vexatious case; see also frivolous).
It can be seen, the words “frivolous” and “vexatious” are related in that, by definition, a frivolous application is a vexatious application.
The Oxford Dictionary of English 2nd edition records that the original meaning of the word “vex” was to cause distress, whilst its more modern meaning is to make somebody feel annoyed, frustrated, worried, irritated or unhappy.
Justice Mullane in Darwin & Darwin [2008] FamCA 588 said:
16. “Frivolous” is defined by the Macquarie Dictionary as “of little or no weight, worth or importance”, “Not worthy of serious notice”, or “characterised by lack of seriousness or sense”.
17. The mother’s case is not that the father’s application is frivolous. From the evidence it appears she relies on the ground that it is “vexatious”.
18. “Vexatious” is defined by the Macquarie Dictionary as “something that vexes” and “vex” is defined as “to irritate, annoy, provoke, make angry”, “to torment”, “plague, worry”, and in the sense use of legal actions is defined as “instituted without sufficient grounds, and serving only to cause annoyance”.
In Attorney-General (NSW)v Wentworth (1988) 14 NSWLR 481 at 491, Roden J set out a test for determining whether proceedings are vexatious, in the context of s 84 of the Supreme Court Act1970 (NSW), as it then was. This test has been widely cited and applied (see for example, Mullane J in Darwin & Darwin [2008] FamCA 588 at paragraph 20). Justice Roden set out the test as follows:
I believe that the test may be expressed in the following terms:
1. Proceedings are vexatious if they are instituted with the intention of annoying or embarrassing the person against whom they are brought.
2. They are vexatious if they are brought for collateral purposes, and not for the purpose of having the court adjudicate on the issues to which they give rise.
3. They are also properly to be regarded as vexatious if, irrespective of the motive of the litigant, they are so obviously untenable or manifestly groundless as to be utterly hopeless.
4. In order to fall within the terms of s 84:
(a)proceedings in categories 1 and 2 must also be instituted without reasonable ground (proceedings in category 3 necessarily satisfy that requirement);
(b)the proceedings must have been “habitually and persistently” instituted by the litigant.
As can be seen, the motive of the applicant is not necessarily relevant to the assessment as to whether or not the proceedings themselves are vexatious.
The father’s affidavit sets out the proceedings to which he is currently a party including two applications for Special Leave to the High Court and an appeal to the Full Court. The father is also a witness in the mother’s criminal proceedings.
The mother has already involved the father in three interlocutory appeals in the Full Court (in the first of which he responded with a cross appeal). The father’s affidavit also sets out previous litigation the mother instituted in relation to telephone communication. The application I indicated I will dismiss is the third application in less than two years in which the mother seeks interim telephone communication orders. The mother did not pursue orders for telephone time and letter and email contact at the interim hearing before me on 22 November 2012.
Since October 2010, the mother has filed 29 Applications in a Case (see Schedule 1). The mother submits that all of her applications have been as a result of the father’s actions. I do not accept that is so.
In support of many of her applications, the mother has filed large amounts of material that may or may not be relevant at the final hearing but is largely not relevant in the context of the interim application that has been made. In addition, the mother provides lengthy submissions that detail research that may or may not be an appropriate submission at a final hearing but certainly in the context of an interim application can be given no weight.
The mother’s submissions and affidavit contain assertions that I have “failed to remain impartial and objective”, and that the court is “failing to protect children from abuse”. The mother regularly takes the opportunity at the events created by the filing of her interim applications to press or repeat more general claims which are not able to be dealt with in the confines of an interim hearing. On this occasion, the mother orally submitted that she won’t get any justice at a final hearing. The mother’s material is highly critical of the role the Independent Children's Lawyer has played. She develops the proposition that Dr W is a biased witness. The father’s lawyer, the father, and the Independent Children’s Lawyer have to read all of this material, even if most of it is not relevant to the application itself.
The solicitor for the father submitted that I should regard the child’s best interest as a paramount consideration. An order under s 118 FLA is not a parenting order, location order, or a recovery order and I am not mandated to regard the child’s best interests as the paramount consideration but it is an important consideration. I find that this continued churning of interim litigation and its probable effect on the father is not in the child’s best interests.
The mother has appealed on two occasions in relation to the terms of orders appointing an independent expert. She has been unsuccessful in both those appeals. The most recent appeal (which was wholly unsuccessful) has delayed the appeal of the Court to hear the matter on a final basis by at least ten months. Such delay cannot be in the child’s best interests.
Looking at the mother’s affidavit and her two lots of submissions, I am satisfied that the current interim proceedings and the manner in which the mother has conducted them are vexatious. They are vexatious in the sense that they didn’t have any proper basis given the previous interim parenting decisions that have been made in the matter and the unsuccessful appeal from at least one of those decisions. The application before me had no reasonable prospect of success.
The mother’s applications can be characterised as being “habitually and persistently” instituted. The applications require a lot of attention from the father in circumstances. The father has been engaged by the mother in the Full Court and apparently will be soon in the High Court.
I consider that it is appropriate given the circumstances for the court to intervene and make an order that the mother be required to obtain leave before she can institute further interim proceedings for parenting orders or any other orders in relation to the child.
The solicitor for the father orally sought that if the mother makes any applications for leave that those applications not be served on the father or the Independent Children’s Lawyer. I accept that is an appropriate order to make in the interim.
I certify that the preceding fifty-seven (57) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Watts delivered on 19 April 2013
Associate:
Date: 19 April 2013
SCHEDULE 1
| Date of Application | Brief Description of Orders sought by the mother |
| 19 October 2010 | - review of a Registrar’s decision refusing leave to inspect documents produced by Dr W under subpoena - leave granted to the legal representatives and the ICL to inspect documents produced by Dr W under subpoena |
| 4 February 2011 | - the father be restrained from discussing proceedings with the child - the father inform the mother of the child’s residential and schooling arrangements - discharge of some orders |
| 29 June 2011 | - the child live with the maternal uncle - the mother live at the maternal uncle’s home - the father spend time with the child for 2 hours per week supervised by the maternal uncle - the father have telephone communication with the child at 7.00pm on Mondays - Dr Q be appointed as the expert - the parties each pay $2500 for the expert report |
| 25 July 2011 | - the mother spend time with the child each Saturday and Sunday for three hours - the mother communicate with the child by phone at 5.00pm on Mondays and Wednesdays |
| 15 August 2011 | - Watts J disqualify himself |
| 29 August 2011 | - the mother spend time with the child each Saturday and Sunday at the maternal uncle’s home for 3 hours supervised by the maternal uncle and/or the maternal aunt - the mother have telephone communication with the child on Mondays and Wednesdays at 5.00pm |
| 8 September 2011 | - Discharge of an order giving leave to legal representatives to inspect documents produced from Dr W and the father’s former employer under subpoena - leave for the parties, and their legal representatives and the ICL to inspect documents produced from Dr W and the father’s former employer under subpoena |
| 16 September 2011 | - Dr W be removed - Dr Q be appointed - An expert be appointed to assess the child |
| 26 October 2011 | - discharge of an order restraining the mother from receiving entitlements from R Limited |
| 26 October 2011 | - warrant be issued for the father’s treating psychologist and NSW Police Records for failing to produce records under subpoena |
| 31 October 2011 | - discharge of an order providing the child spend time with the mother for two hours per week at a contact centre - the child spend time with the mother every Friday night unsupervised |
| 9 November 2011 | - Dr W attend in person for cross examination |
| 15 November 2011 | - stay of orders |
| 15 November 2011 | - the child have no contact with the father - the child live with the mother at the maternal uncle’s home - alternatively, the child live at the maternal uncle’s home and have unlimited contact with the mother - the child attend a specific primary school - there be an investigation into abuse the child has suffered - the father undergo psychiatric assessment - the mother and the child be allowed to travel to Western Australia over Christmas to visit the maternal grandmother - the father be restrained from approaching the mother or the child - the father be restrained from disseminating information about the proceedings - appropriate measures be taken against the father’s extensive contraventions |
| 29 December 2011 | - stay of orders |
| 6 January 2012 | - the mother spend time with the child for three hours on a Sunday supervised by a contact service, paid for by the mother - the mother also spend time with the child for two hours on a Saturday or on a school night supervised by a contact service, paid for by the father - pending one positive report from the contact service, the mother have unsupervised time with the child on Wednesday nights, alternate weekends, and Saturday day (if not spending the weekend) |
| 30 January 2012 | - the expert be allowed to speak to schools, school counsellors, health professional and mental health professional the child has seen, excluding Dr W |
| 30 January 2012 | - emails from the father to Dr W be provided to the expert |
| 27 June 2012 | - the application be heard ex-parte - the Department of Family and Community Services assess the child - urgent psychiatric assessment of the father |
| 22 August 2012 | - injunction against the author of a book further promoting, publishing, distributing or selling the book - investigation into a s121 FLA breach - the father be restrained from disseminating information about the proceedings - the child live with the mother - alternatively, the child live spend time with his mother for half of each week |
| 3 September 2012 | - the mother’s affidavit be supplemented with material from another affidavit |
| 3 September 2012 | - dispense with service on Ms B - alternatively, the father serve documents on Ms B - the father’s solicitor acknowledge receipt of service of the mother’s documents |
| 24 September 2012 | - injunction against the author of a book further promoting, publishing, distributing or selling the book - investigation into a s121 FLA breach - the father be restrained from disseminating information about the proceedings - the child live with the mother - alternatively, the child live spend time with his mother for half of each week - impose penalties on the father for failing to provide details of the child’s schooling |
| 10 October 2012 | - permission to subpoena the father’s treating psychologist and two organisations |
| 10 October 2012 | - the parties create a minimal list of documents to be sent to Dr Q - the father be restrained from communicating cost issues to Dr Q - the father provide financial details to the mother - the child live with the mother - alternatively, the child live with the mother from Wednesday to Saturday each week - an independent psychologist/social worker be appointed to monitor the child |
| 15 November 2012 | - injunction against the author of a book further promoting, publishing, distributing or selling the book - the author of the book remove all internet references, promotions and listings of the book - investigation into a s121 FLA breach - the father be restrained from disseminating information about the proceedings - the child live with the mother - alternatively, the child live spend time with his mother for half of each week - impose penalties on the father for failing to provide details of the child’s schooling |
| 3 December 2012 | - extension of time to file a case outline |
| 24 January 2013 | - extension of time to file an application and affidavit reviewing orders made 7 May 2008 |
| 8 February 2013 | The current application before me |
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