VALDEZ & FRAZIER
[2018] FamCA 873
•21 June 2018
FAMILY COURT OF AUSTRALIA
| VALDEZ & FRAZIER | [2018] FamCA 873 |
| FAMILY LAW – PRACTICE AND PROCEDURE – VEXATIOUS PROCEDINGS - Application by father seeking leave to institute proceedings under s 102QE and 102QF of the Family Law Act 1975 (Cth). FAMILY LAW – PRACTICE AND PROCEDURE – STAY APPLICATION – Application by father pending appeal – Father’s stay application dismissed. |
| Family Law Act 1975 (Cth) 102QE, 102QF Family Law Rules 2004 (Cth) r 22.11 |
| Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106 |
| APPLICANT: | Mr Valdez |
| RESPONDENT: | Ms Frazier |
| FILE NUMBER: | SYC | 2226 | of | 2013 |
| DATE DELIVERED: | 21 June 2018 |
| PLACE DELIVERED: | Hobart |
| PLACE HEARD: | Hobart (Chambers) |
| JUDGMENT OF: | Benjamin J |
| HEARING DATE: | In Chambers 19 June 2018 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: |
| SOLICITOR FOR THE APPLICANT: | In person |
| COUNSEL FOR THE RESPONDENT: |
| SOLICITOR FOR THE RESPONDENT: | Swaab Attorneys |
Orders
The application in a case filed by Mr Valdez on 24 April 2018 is dismissed (this includes the application for leave pursuant to s 102QE to institute proceedings and the application for stay of appeal EAA 23/2018.
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 Valdez & Frazier 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 HOBART |
FILE NUMBER: SYC 2226 of 2013
| Mr Valdez |
Applicant
And
| Ms Frazier |
Respondent
REASONS FOR JUDGMENT
INTRODUCTION
Mr Valdez (‘the father’) and Ms Frazier (‘the mother’) are involved in proceedings in relation to parenting arrangements with regard to a child of their relationship, presently aged 6.
On 10 January 2018 I made orders (‘the Orders’) dismissing the father’s application for an adjournment, appointing a single expert, listing these proceedings for hearing before me in September 2018 and other trial directions.
In addition, the Orders provided for dismissal of an application in a case by the father filed 13 November 2017 and various other orders.
On 5 February 2018 the father lodged an appeal in relation to Orders 3, 6(c) and 17. In particular they provide:-
Order 3
[Ms C] (‘single expert’) be appointed single expert pursuant to the Family Law Rules to prepare a report as soon as is practicable in relation to[B] born … 2011 (‘the child’) in particular dealing with:-
(a) the capacity of the parties to communicate and co-parent;
(b) the relationship of the child with each parent;
(c) the views of the child having regard to the age and maturity of the child;
(d) the mental state of each party in so far as they are relevant to issues relating to the child;
(e) the time the child should spend with each party;
(f) the capacity of each party to meet the child’s needs including the child’s emotional and intellectual needs;
(g) the capacity and willingness of each party to promote the child’s relationship with the other party;
(h) the matters relating to the cultural and religious issues between the parties in so far as they are relevant to the child;
(i) the likely effect of any changes in the child’s circumstances including the likely effect on the child of any separation from either one or other of the parents; and
(j) any other matter which the single expert considers relevant.
…
Order 6
Both parties be restrained and enjoined from:-
(c) taking any recording device into the expert report interview or making any recording other than notes before and/or after the interview.
…
Order 17
As to the amended application in a case filed 13 November 2017 by the father:-
(a) The application for an interim injunction restraining the mother disposing of her property (as set out in order 4 of that amended application) be and is dismissed.
(b) The application for interim parenting orders (as set out in orders 6 to 27 of that amended application) is adjourned 17 September 2018 to the commencement of the hearing of this matter where it will be subsumed in the final hearing.
(c) The application in relation to change of venue (as set out in order 3 of that amended application) is dismissed and it was noted that such part of the application was not heard on its merits.
(d) The application in relation the father purporting to withdraw his consent to the order made under s 102Q of the Family Law Act (as set out in order 5 of that amended application) is dismissed.
On 24 April 2018 the father filed an application in a case seeking three orders, namely that:-
1.The application in a case be heard in the absence of the parties;
2.The father be granted leave to file the application in a case; and
3.The orders made 10 January 2018 be stayed pending the outcome of the appeal to which I have earlier referred.
In support of that application the father relied upon his affidavits sworn 28 March 2018 and filed 24 April 2018.
On 2 May 2018 a letter and a Chambers Order of that same date were forwarded to the father giving him until 4.00pm on 11 May 2018 to make written submissions in support of his application for a stay of the Orders pending his appeal. On the 11 May 2018 the father forwarded written submissions to the Court together with three articles and a copy of the Hansard Senate Estimates ‘Legal and Constitutional Affairs Legislation Committee’ dated 9 February 2016. The father relied on all of these documents in support of his application for a stay. The father’s submissions in relation to the stay are largely irrelevant to the issues to be considered.
There are two aspects to this case.
The first is that the father is the subject of a vexatious proceedings order made by consent on 12 May 2016 pursuant to s 102Q of the Family Law Act 1975 (Cth) (‘the Act’). This means the father may only commence proceedings after having complied with s 102QE of the Act, which requires an application for leave to be made to the Court. That section relevantly 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.
Appropriately the father has filed an affidavit in support of his application which he asserts is in relation to s102QE of the Act.
Section 102QF of the Act provides the powers of the Court, namely:-
Dismissing application for leave
(1) The court may make an order dismissing an application under section 102QE for leave to institute proceedings if it considers the affidavit does not substantially comply with subsection 102QE(3).
(2) The court must make an order dismissing an application under section 102QE for leave to institute proceedings if it considers the proceedings are vexatious proceedings.
(3) The court may dismiss the application without an oral hearing (either with or without the consent of the applicant).
(4) The court may make an order under this section in Chambers.
The question is whether I ought to proceed to the second step under the provisions regarding vexatious litigants, which is to enable the matter to be heard and allow the mother to be heard in relation to the application.
In that context this Court considered the nature of the stay application itself upon which the leave is effectively sought.
Rules and Principles relating to Stay applications
The determination of a stay application is a discretionary decision made by the first instance judge if available, or other first instance judge if otherwise. The Rules at 22.11 provide:-
(1) The filing of a Notice of Appeal does not stay the operation or enforcement of the order appealed from, unless otherwise provided by a legislative provision.
(2) If an appeal has been started, or a party has applied for leave to appeal against an order, any party (emphasis added) may apply for an order staying the operation or enforcement of all, or part, of the order to which the appeal or application relates.
(3) An application for a stay must be filed in the Registry in which the order under appeal was made and be heard by the Judge of the Family Court, Judge of the Federal Circuit Court or Magistrate who made the order under appeal.
The relevant principles in the determination of a stay application are clear:- [1]
[1] Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106 at paragraph 18.
· the onus to establish a proper basis for the stay is on the applicant for the stay. However, it is not necessary for the applicant to demonstrate “special” or “exceptional” circumstances;
· a person who has obtained a judgment is entitled to the benefit of that judgment;
· the person who has obtained a judgment is entitled to presume the judgment is correct;
· the mere filing of an appeal is insufficient to ground a stay;
· the bona fides of the applicant;
· a stay may be granted on terms that are fair to all parties – this may involve a court weighing the balance of convenience and the competing rights of the parties;
· a weighing of the risk that an appeal may be rendered nugatory if a stay is not granted – this will be a substantial factor in determining whether it will be appropriate to grant the stay;
· some preliminary assessment of the strength of the proposed appeal – whether the appellant has an arguable case;
…
· the period of time in which the appeal can be heard and whether existing satisfactory arrangements
I accept that it is not necessary for the father to demonstrate special or exceptional circumstances. However, the father must establish a proper basis for the stay. Reading through the father’s affidavit in support this Court is not assisted as to the basis of the appeal. There is a long history provided by the father of his unhappiness as to the process and his assertions as to its adverse impact upon the child.
The appeal is somewhat confusing. The father objects to the appointment of a single expert, but does not seek to vacate the hearing date. His challenge to the appointment of the single expert was lodged after the dates when he was to see the single expert.[2] Given those circumstances the stay in respect of this order seems moot.
[2] The single expert interview was apparently to occur on 26 and 27 April 2018 – paragraph 36 of the father’s affidavit
There seems to be no evidence as to why the report ought not to proceed apart from the father’s concern that he does not have written reasons for the Orders made on 10 January 2018.
His complaint in relation to Order 6(c) would, if he attended the interview with the single expert’, be moot and in any event no evidence was provided as to why the Court was wrong in making that order.
There was no relevant material in the father’s affidavit in support of his complaints regarding Order 17.
The mother has obtained orders and is entitled to the benefit of those orders. The mother is entitled to accept that the judgment is correct, and the mere filing of an appeal is insufficient to ground a stay.
Given the affidavit evidence before me I am not satisfied, given the lack of material, as to the bona fides of the applicant, the father. The onus is on the father to establish that circumstance.
The effect of leaving the Orders in place will be that the matter is heard in September of this year with the benefit of an expert report and a determination can be made as to the arrangements which meet the best interests of that child.
On the face of it and taking it at its best, this does not appear to be a particularly strong appeal.
There is no objective evidence as to the period of time when the appeal can be heard.
Given all of those circumstances, I am satisfied that there not had been a basis established by the father’s to commence proceedings under s 102Q of the Act, as on the evidence before me the stay application could not succeed.
As such, and at the request of the father, I have dealt with this matter in chambers and the application for leave is dismissed, particularly having regard to the circumstances that the stay application would have succeeded in any event.
I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin delivered on 21 June 2018.
Associate:
Date: 21 June 2018
2