Toohey & Dantes (No 4)
[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 records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Toohey & Dantes has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
ALTOBELLI J:
INTRODUCTION
The father is the respondent (“the father”) in the substantive parenting proceedings, and the mother is the applicant (“the mother”) in the substantive proceedings. On 15 March 2023 I ordered that by 31 March 2023 the parties provide written submissions on the issue of whether the father should be declared a vexatious litigant pursuant to the provisions of s 102QB of the Family Law Act 1975 (Cth) (“the Act”). Such an order, if granted, will prevent the enjoined party from instituting any future proceedings under the Act without first obtaining the leave of the Court.
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)).
“Vexatious proceedings” include (s 102Q(1)):
(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.
The word “proceedings” is defined in s 4 of the Act:
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 connexion with a proceeding.
Relevantly, before making a vexatious proceedings order the Court must be satisfied that the person has frequently instituted or conducted vexatious proceedings in Australian courts or tribunals (s 102QB(1)). When considering that matter the Court may have regard to the following (s 102QB(6)):
(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.
Where the Court is satisfied that the person has frequently instituted or conducted vexatious proceedings in Australian courts or tribunals, the Court may make any or all of the following orders (s 102QB(2)):
(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.
A person against whom a vexatious proceedings order may be made must be afforded an opportunity to be heard (s102QB(4)).
A vexatious proceeding order is a final order (s 102QB(5)).
Relevant authorities
What constitutes an abuse of process?
In the often cited authority of State Bank of New South Wales Ltd v Stenhouse Ltd & Ors (1997) Aust Torts Reports 81–423, Giles CJ (Supreme Court of NSW Commercial Division) provides a helpful review of the authorities relating to abuse of process. In summary, a proceeding may be an abuse of process where:
(1)The proceedings are unreasonably oppressive and unfair to the other party;
(2)The proceedings will bring the administration of justice into disrepute; and/or
(3)The party seeks to re-litigate an issue that has already been determined in previous proceedings.
What does “frequently” mean?
The assessment of whether vexatious proceedings have been frequently instituted or conducted is not determined solely, or even necessarily, by the number of proceedings. As the Court of Appeal, Supreme Court of NSW in Potier v Attorney-General (2015) 89 NSWLR 284 concluded at [114] and [116]: “…“frequently” is a relatively low threshold” and “…both the quality of the vexatiousness of a proceeding, and the nature of the proceeding itself, inform the assessment of frequency”.
What particular matters should be considered before making a vexatious proceedings order?
The Full Court of the Family Court in Pencious & Searle (2017) FLC 93-805 cited with approval the decision of Perram J in the Federal Court of Australia in Official Trustee in Bankruptcy v Gargan (No 2) [2009] FCA 398 at 77,694–77,695 (“Gargan”), in which his Honour identified some well-established principles and indicia relevant to the determination of whether or not to make a vexatious proceeding order. They are:
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.
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.
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.
Fourthly, the qualities of vexation…in the commencement by the litigant of proceedings which lack reasonable grounds...
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.
Sixthly, although the ways in which unreasonable grounds may manifest themselves are myriad, 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.
Seventhly, ['frequently' institutes or conducts vexatious proceedings].
Eighthly, each of these notions — the want of reasonable grounds… [and the frequent] institution — are to be gauged objectively. But this does not mean that a litigant's own protestation as to his or her own mental state is irrelevant; frequently enough, the vexatious are betrayed out of their own mouths. Rather, the need for objective determination protects courts from the vexatious litigant who is genuinely, but misguidedly, persuaded as to the correctness of his or her own conduct.
Ninthly, the power to make the order arises when proceedings commenced in the way described are found to exist. But the notion of a proceeding is a broad one including a substantive proceeding directed at the attainment of final relief and collateral applications within such a proceeding; further, it extends outside the proceeding itself and embraces appeals therefrom and applications which, whilst not made in the proceeding, are properly to be seen as collateral thereto - so much flows from the definition of proceeding in s 4 of the Federal Court of Australia Act 1976 (Cth).
Tenthly, other proceedings commenced before bodies which are not courts, such as the Administrative Appeals Tribunal, are not directly pertinent to the existence of the power but may nevertheless throw light on the vexatious nature of proceedings before the Court; so too, the existence of a body of such administrative litigation may have relevance to the question of whether the Court's power to make the order, once enlivened, should be exercised.
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. However, the factors which will be relevant are informed by the protective purpose which the order serves. Where a litigant displays insight into their previous litigious history this will, no doubt, be relevant for it will suggest - although not determine - a diminution in the risk posed to the public. On the other hand, the manner in which a litigant conducts herself in her affairs generally is also capable of throwing light on whether the commencement of further vexatious proceedings is likely. Those general affairs include the litigant's defence to the proceedings by which the order restraining him is sought. Because of the protective nature of the jurisdiction it is also relevant to know the extent of the damage and inconvenience the litigant's forays into the courts have caused, pecuniary or otherwise.
SUBMISSIONS FILED
In his written submissions received 31 March 2023, the father submitted that he should not be declared a vexatious litigant. In summary, he submitted that this was because: he has never before been accused of being a vexatious litigant and the issue has never been raised by any other judicial officer; the definitions/requirements under s 102Q (and presumably s 102QB) of the Act are not met; this declaration would be a form of continuing domestic violence, system abuse and coercive control by the mother and not in the best interests of the child; his applications have been in good faith, often in response to the mother withholding access to the child, and in many instances have been partly or entirely successful; and that he is self-represented.
In her written submissions received 31 March 2023, the mother submitted that the father should be declared a vexatious litigant. In summary, she submitted that the Court should be satisfied that the father has “constituted and conducted vexatious proceedings, and that this has occurred frequently”, and relied upon the protracted litigation history regarding expert evidence and the variation of parenting orders, as set out in her submissions.
PROCEEDINGS INSTITUTED OR CONDUCTED BY THE FATHER
In order to determine whether the father has frequently instituted or conducted vexatious proceedings, it is necessary to briefly review the proceedings instituted, conducted or pursued by him in this Court.
The father’s present application
The application from which these reasons for judgment arise is the Application in a Proceeding filed by the father on 6 December 2022. The father had leave to file this application provided it was confined to certain discrete issues, pursuant to orders made 8 November 2022. The orders sought in this application included: orders requiring an expert report be set aside; that the matter be urgently set down for final hearing; and that the father’s time with the child be varied to include unsupervised overnight time and block periods during holidays.
In her Response to an Application in a Proceeding filed 22 December 2022, the mother sought for the application to be dismissed with costs. Regarding a single joint expert, she sought for a single joint expert to be appointed, for the father to be restrained from communicating with the expert, for the Independent Children’s Lawyer to forward the single joint expert a joint letter of instruction, and for the father to be restrained from bringing any further applications to vary the appointment or dispensation of an expert. In terms of parenting, the mother sought for the father to be restrained from asking the child about “locations he attends and discussing spending time with him in the future”, and that the father be restrained by injunction from bringing any further application in respect to varying parenting orders. Finally, she sought an order under s 102NA of the Act.
Judgment for this application was reserved on 10 February 2023 and delivered on 15 March 2023 (Toohey & Dantes (No 3) [2023] FedCFamC1F 147), where, among other things, the parties were ordered to provide written submissions on the vexatious litigant issue. I incorporate into these reasons for judgment my reasons for judgment of 15 March 2023. For all practical purposes the father was completely unsuccessful in those proceedings. Parts of his application were found to constitute an abuse of process.
Apart from the current application, the father has filed seven Applications in a Proceeding, and the mother has filed one Application in a Proceeding.
The concurrent proceedings in this court
Until recently, there were concurrent proceedings in this Court involving the father’s previous partner and their child. These proceedings began on 15 April 2014 and involved 20 Applications in a Proceeding filed by the father, as well as four Applications in a Proceeding filed by the father’s previous partner.
The father filed a Notice of Discontinuance regarding the concurrent proceedings on 9 May 2023, and judgment on the remaining issues is reserved.
CONCLUSION – SHOULD A VEXATIOUS PROCEEDINGS ORDER BE MADE AGAINST THE FATHER?
There have been at least 21 proceedings instituted or conducted by the father in this Court in the present and concurrent proceedings.
The vast majority have been found to be without merit. Indeed, the strong impression formed is that some of the proceedings were an abuse of process. The litigation history of the father’s applications for interim parenting orders, discussed in my reasons for judgment dated 15 March 2023, evidences the father’s relentless but futile attempts to vary the relevant orders. He sought to re-agitate issues that had previously been determined against him.
There are two unpaid costs orders made against the father in the present matter.
I find the cumulative proceedings commenced by the father without reasonable grounds to be vexatious. Even if I am wrong to find that all of the proceedings were vexatious, there have nevertheless been sufficient vexatious proceedings to conclude that the father has frequently instituted, conducted or pursued vexatious proceedings.
The father has demonstrated a refusal “to understand the principles of finality of litigation” (Gargan at 77,694). He has little to no insight about the impact of his litigious actions on the mother, the child, and the public generally. Each are entitled to be protected. Nothing that the father has said in his defence persuades me that he will cease his propensity to institute vexatious proceedings without intervention. Even the discontinuance of the concurrent claim does not lead to the inference that he would not continue his campaign of litigation in the present, or other cases.
Indeed, very little said in the father’s case addressed the pertinent issue. His perception that he has always acted in good faith is entirely subjective. His propensity to make allegations without reference to evidence is palpable.
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.
I certify that the preceding thirty-six (36) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Altobelli J. Associate:
Dated: 8 June 2023
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