Walford and Dore (No. 2)

[2007] FamCA 642

FAMILY COURT OF AUSTRALIA

WALFORD & DORE (NO. 2) [2007] FamCA 642

FAMILY LAW - ORDERS - Contravention - Frivolous and vexatious application – Costs - Section118

APPLICANT: MR WALFORD

RESPONDENT: MS DORE

FILE NUMBER: CAF 1094 of 1995

DATE DELIVERED: 22 May 2007

PLACE DELIVERED: Canberra

JUDGMENT OF: MULLANE J

HEARING DATE: 22 May 2007

REPRESENTATION

THE APPLICANT: There was no appearance by or on behalf of the applicant husband

THE RESPONDENT: The respondent wife appeared on her own behalf

Orders

1. The father’s Contravention Application filed on 26 April 2007 is dismissed for want of prosecution.

1. The father’s Amended Form 1 Application for final orders filed 30 May2005 is dismissed for want of prosecution.

1. The father … must not without the Court’s permission file any application under the Family Law Act in relation to the parties’ son W born … December 1993.

1. Any application for permission in the first instance is to be listed before a Judge in Chambers without appearances and unless otherwise ordered is not to be served upon any other party.

1. The father must pay to the mother a sum of $400 towards her expenses of defending the Contravention Application.

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Honourable Justice Mullane delivered this day will for all publication and reporting purposes be referred to as Walford and Dore.

FAMILY COURT OF AUSTRALIA AT CANBERRA

FILE NUMBER: CAF 1094  of 1995

MR WALFORD

Applicant

And

MS DORE

Respondent

REASONS FOR JUDGMENT

1. In relation to the father’s claim that he seeks to rely in the contravention proceedings on the evidence of two witnesses who have not signed affidavits, and whom he says subpoenas have been served, there is no evidence to establish service and the father told the Court that he does not know their surnames.

2. Justice Waddy listed those proceeding for hearing today and the father was present at the time.  His Honour ordered, (order (4) of 30 March 2007):

   The trial should take place unless circumstances in the Court prevent it from doing so before his Honour Mullane J, on 22, 23, 24 May to the final hearing between the parties will occur on those days and it will be completed within that time frame.  (3)  Subject to the direction of the trial judge the parties can divide the time available to them within that period equally.

3. The father has now withdrawn from the proceedings and is not here to prosecute his application.  

4. As far as I am aware the father did not comply with the directions in that he has not provided a list of any documents on which he relies in the proceedings, notwithstanding the direction of Waddy J and the fact that the matters were set down for hearing today for three days.  Despite some of the comments that the father made earlier, I have not been involved in these proceedings before today. The father, from what he said today, seems to have some paranoia directed at me and others. 

5. I am concerned about the fact also that the contravention application occurs in the context of orders of 30 March 2007 by Waddy J; dismissed all applications for contravention that were existing at that time. Apparently some of them were the husband's. 

6. On 16 April the husband filed the contravention application that I have dismissed today.   The document does not disclose a contravention of an order.  It does not identify an order other than by words "orders of Faulks J, order 2004".  The affidavit in support of the contravention application likewise does not identify any order contravened.  The affidavit therefore is incapable of establishing a prima facie case.  I note the father was unrepresented in the preparation of these documents.  However, contravention proceedings are not to be taken lightly because they put the respondent at risk of sanctions, including imprisonment for up to 12 months.  They are serious proceedings and they should be taken seriously, particularly by applicants.  They should not be commenced without reasonable grounds.  This is a situation where the application did not disclose a prima facie case.

7. I am also concerned about the husband's behaviour this morning because the amended application in the children's proceedings concerning his son, W, was filed in May 2005 and I think proceedings were commenced some considerable time prior to that.  So they are a long-standing proceedings.  His behaviour this morning was quite amazing considering the significance of the proceedings.  Presumably it is important to him that he have arrangements for time with the son and that the arrangements be satisfactory to him. 

8. Also, his current application, is for the son to reside with him.  His behaviour this morning suggests that he is not able to focus on the significance of the application, the proceedings concerning the son and what he believes to be the son's best interests.  It indicates that he is more concerned with what he sees as his contest with the Family Court or the court system in general.

9. It seems remarkable that a litigant, who is appearing for himself, would threaten a judge who he has not seen before, with appeals to the High Court on the very first occasion that he appears before the judge. 

10. These matters that I have mentioned, concerns I have about the father, raise questions as to whether there should be some order restraining him in relation to the filing of further applications. 

11. I am satisfied in relation to the contravention application that the application was frivolous and vexatious.  That is not just because of the fact that it had no substance and did not disclose a contravention in the application and did not provide evidence capable of establishing a prima facie case.  It is also in the context that it was filed after the order of Waddy J to dismiss his previous contravention application and at a time when 21 months had elapsed since the alleged contravention.  When he filed the application in April he was seeking to have the mother dealt with for a contravention which he alleged occurred in July 2005, nearly 21 months previously and also a second alleged contravention in September 2005, more than a year previously. 

12. So I am satisfied that that application was frivolous and vexatious.

13. I am satisfied the mother filed a minute of proposed orders in accordance with the orders made by Waddy J on 30 March 2007 regarding preparations for trial.  The order number eight particularly required each of the parties to file a minute of orders they were seeking in the proceedings by 4 pm on 4 May and the mother filed her minute of orders on 4 May.  She was required to serve a copy of the minute on the other parent's notice of address for service by sending it on 4 May or earlier by pre-paid post and she did that.  Accordingly, I will amend the mother's response of 20 August 2004 to substitute the order sought in the minute filed on 4 May as the order she seeks in the proceedings.

14. These are proceedings that have been long standing, the current proceedings, but there has been previously proceedings between the parties and extensive litigation, it appears from the documents, dating back to I think 1995.  It seems from the documents I have read on the list provided by the mother that the subject child, was only a matter of months old when the parties separated and that the father and the mother have been litigating almost continuously since then. 

15. The amended application of the father - his most recent application in this particular hearing is, as I have said earlier, dated 31 May 2005, so that is nearly two years old - it is clear that there has been extensive litigation involving the parties. 

16. I do not know whether the husband's behaviour today is typical of the way he behaves in litigation but it is the only indication I have and my concerns are so great that he conducts himself in that way in relation to all his litigation involving the mother and the issues about the son that I think he should be restrained from filing any further applications in relation to the son under the Family Law Act except by the leave of a judge of this Court.  

17. I should say I do have concerns too that the father may well be a disabled person in a sense that the Act defines it, which is a person who does not understand the nature of the proceedings or is incapable of adequately conducting the proceedings or providing instructions to a lawyer to conduct the proceedings.  It seems that, from his conduct this morning, that he has difficulty seeing the wood for the trees and that he reacts in an almost obsessional way when confronted with a difficulty, regardless of the reasons and regardless of the validity of the reasons.  His reaction seems to become more assertive and more aggressive and this morning, petulant.  That does not assist him case.  His behaviour this morning in seeking to engage me by accusing me of bias and other matters, because I was making a decision that he did not like, is quite irrational and contrary to his own interests.  It is indicative that he does not have the capacity to adequately conduct the proceedings himself.  Probably he does not have the capacity to adequately instruct a lawyer either if that is the way he approaches the matter.  But that issue may have to be determined at a later date when there is more evidence available.

RECORDED  :  NOT TRANSCRIBED

1. I am satisfied that there should be an order requiring the husband to have permission from a judge before filing any further application under the Family Law Act in relation to the child. I am also satisfied that if there is an application for permission that in the first instance it should be listed before a judge in chambers without appearances and unless otherwise ordered, it should not be served on any other party.

2. In the first instance he will apply for leave, if he obtains leave then he will need to serve the application on any other party at that stage.  Whoever sees it in chambers may determine that it should be dealt with in open Court, in which case it might be notified to any party involved rather than just have the father himself present. 

3. In exercise of the power under s.118 to make an order for costs where an application has been dismissed as being frivolous or vexatious I take into account that the mother in these proceedings has, in relation to the contravention application, had to appear in Court on two occasions and on those occasions she has had to arrange for her husband to take leave from work and so has forfeited on those days the earnings that he might otherwise receive or has forfeited the leave days.  The value of the work days is the income he receives which is $300 gross per day.   So the net loss that he and the mother have suffered is $200 for each of those days. 

4. I am not aware of the father's financial circumstances.  He has left the Court and he is not here to answer any questions about or make any submissions about his financial circumstances.

5. The mother is self-represented in the proceedings and has not had Legal Aid to cover legal representation. 

6. Given the reasons that I gave for the dismissal of the application and for the making of an order restraining the father from filing further applications and the findings I made in relation to the contravention application having no merit and not disclosing a contravention in the application or in the supporting affidavit, I think it is an appropriate situation where the father should pay the costs incurred by the mother.

I certify that the preceding sixteen (23) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Mullane

Associate: 

Date:   26 June 2007