Toohey & Dantes (No 4)

Case [2023] FedCFamC1F 464

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Toohey & Dantes (No 4) [2023] FedCFamC1F 464

File number(s): SYC 6702 of 2019
Judgment of: ALTOBELLI J
Date of judgment: 8 June 2023
Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Vexatious proceedings order – Where it is found that the father has frequently instituted vexatious proceedings – Where a vexatious proceedings order is made against the father pursuant to s 102QB(2) of the Family Law Act 1975 (Cth).
Legislation: Family Law Act 1975 (Cth) ss 102Q,102QB, 102QE
Cases cited:

Official Trustee in Bankruptcy v Gargan (No 2) [2009] FCA 398

Pencious & Searle (2017) FLC 93-805; [2017] FamCAFC 210

Potier v Attorney-General (2015) 89 NSWLR 284; [2015] NSWCA 129

State Bank of New South Wales Ltd v Stenhouse Ltd & Ors (1997) Aust Torts Reports 81–423

Toohey & Dantes (No 3) [2023] FedCFamC1F 147

Division: Division 1 First Instance
Number of paragraphs: 36
Date of last submission/s: 31 March 2023
Date of hearing: Heard on the papers
Place: Sydney
The Applicant: Litigant in person
Counsel for the Respondent: Ms Kennedy
Solicitor for the Respondent: Santone Lawyers
Counsel for the Independent Children's Lawyer: Ms McConaghy
Solicitor for the Independent Children's Lawyer: Ark Law Lawyers

ORDERS

SYC 6702 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:

MS TOOHEY

Applicant
AND:

MR DANTES

Respondent

INDEPENDENT CHILDREN'S LAWYER

order made by:

ALTOBELLI J

DATE OF ORDER:

8 june 2023

THE COURT ORDERS THAT:

1.Pursuant to s 102QB(2) of the Family Law Act 1975 (Cth) (“the Act”) the Respondent father be prohibited from instituting proceedings in a Court having jurisdiction under this Act without first obtaining leave pursuant to s 102QE of the Act.

THE COURT NOTES THAT:

A.Section 102QE of the Act provides:

Application for leave to institute proceedings

(1)This section applies to a person (the applicant ) who is:

a)subject to a vexatious proceedings order prohibiting the person from instituting proceedings, or proceedings of a particular type, under this Act in a court having jurisdiction under this Act; or

b)acting in concert with another person who is subject to an order mentioned in paragraph (a).

(2)The applicant may apply to the court for leave to institute proceedings that are subject to the order.

(3)The applicant must file an affidavit with the application that:

a)lists all the occasions on which the applicant has applied for leave under this section; and

b)lists all other proceedings the applicant has instituted in any Australian court or tribunal, including proceedings instituted before the commencement of this section; and

c)discloses all relevant facts about the application, whether supporting or adverse to the application, that are known to the applicant.

(4) The applicant must not serve a copy of the application or affidavit on a person unless an order is made under paragraph 102QG(1)(a). If the order is made, the applicant must serve the copy in accordance with the order.

Note:   The form of the order is subject to the entry in the Court’s…

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AGLC
Toohey & Dantes (No 4) [2023] FedCFamC1F 464
Case
[2023] FedCFamC1F 464
Decision Date

CaseChat Overview and Summary

The case of Toohey & Dantes (No 4) involved a father who was subject to a vexatious proceedings order due to his history of initiating and pursuing legal actions without merit. The father and mother, who have a six-year-old child together, have been engaged in protracted litigation regarding parenting arrangements and contact with the child. The mother and child reside in Sydney, while the father's address is listed as a suburb in Melbourne, though it remains uncertain if he is currently residing in Australia. The father has been found to have frequently engaged in vexatious proceedings, prompting the court to consider whether a vexatious proceedings order should be made against him.

The court was required to determine if the father had indeed engaged in vexatious litigation as defined under the relevant statutory provisions. This involved assessing whether the father's actions were without merit, persisted despite warnings, or were otherwise an abuse of the court process. Additionally, the court needed to consider the impact of such proceedings on the child and the other party, as well as the overall efficiency and fairness of the judicial system.

In making its decision, the court reviewed the extensive history of the litigation and found that the father had indeed frequently instituted, conducted, or pursued vexatious proceedings. The court concluded that a vexatious proceedings order was warranted as it would prevent the father from initiating any further proceedings under the Act without first obtaining leave. The order aimed to protect the mother and child from unnecessary and meritless litigation, ensuring that the court's resources were not wasted on proceedings that lacked substantive merit.

The court made a vexatious proceedings order against the father, prohibiting him from instituting any future proceedings under the Act without first obtaining leave from the court. This order was intended to curtail the father's ability to engage in further vexatious litigation, thereby protecting the interests of the mother and child, and promoting the efficient use of the court's resources.

Orders

Orders of the court

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Background

Background to the litigation

I propose to make a vexatious proceedings order against the father for the reasons set out below. BRIEF BACKGROUND The father in this case is 54 years old, and the mother is 49 years old. The mother has a child from an earlier relationship, who is now 12 years old. The father has a child from an earlier relationship, who is 10 years old. The mother and the father have one child together, X, who was born in 2016 and is six years old (“the child”). The child lives with the mother and his step-sibling in Sydney. The father has limited communication or contact with his child from an earlier relationship, and they have not spent time together nor communicated with each other since October 2019. The child in the current proceedings lives with the mother and has not seen the father in person for three years. The current order for the father to spend time and communicate with the child is based on orders that were made by Judge Smith on 16 October 2019, and varied by Rees J on 17 December 2021. In summary, the orders provide that the father spend supervised time with the child, and that he communicate by telephone or videoconference software with the child twice per week. Both parents assert that the other is not complying with the order in relation to communication. No finding is possible about that issue in the present context. There are concurrent proceedings in this Court between the father and the mother of his child from an earlier relationship. For present purposes, in these reasons this litigation will be referred to as “the concurrent proceedings”. The mother and the father commenced cohabitation in a suburb of Sydney in 2015 and separated on 13 February 2019. The present proceedings were commenced by the father on 4 October 2019 and have continued since then. The mother and the child live in the K Region. It is unclear to the Court where, precisely, the father lives, but the address stated on his affidavit is a suburb in Melbourne, Victoria. The only uncertainty in this regard relates to the fact that the father has previously appeared in this litigation remotely by Microsoft Teams, and the Court had formed the impression that he was working overseas at that time. Before providing an overview of the litigation, I propose to set out the relevant statutory provisions and case law. MATERIAL BEFORE THE COURT Pursuant to orders made on 15 March 2023, both parties were required to provide written submissions on the issue of whether the father should be declared a vexatious litigant. Both parties’ written submissions were received on 31 March 2023. The Court has also considered the extensive litigation history of this matter as reflected in the Court’s own records.WHEN CAN A ‘VEXATIOUS PROCEEDINGS ORDER’ BE MADE? The statutory provisions The statutory basis for making a “vexatious proceedings order” is set out in Part XIB of the Act and can be made on the Court’s own initiative or upon application by a person against whom another person has instituted or conducted vexatious proceedings (s 102QB(3)).

Evidence

Evidence Before The Court

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Decision

Reasons for decision

Accordingly, I propose to make a vexatious proceedings order against the father, which will prevent him from instituting any further proceedings under the Act without first obtaining leave. CONCLUSION I have found that the father has frequently instituted, conducted or pursued vexatious proceedings and that a vexatious proceedings order should be made against him under s 102QB(2) of the Act. The consequence of such an order will prevent the father instituting any future proceedings under the Act without first obtaining leave of the Court under s 102QE of the Act.

Ratio Decidendi

Legal Principle Established

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