Westlake & Westlake (No 3)

[2019] FamCA 670

FAMILY COURT OF AUSTRALIA

WESTLAKE & WESTLAKE (NO. 3) [2019] FamCA 670

PRACTICE AND PROCEDURE – Vexatious Proceedings Order – Where it is found that the father has frequently instituted or conducted vexatious proceedings – Where a vexatious proceedings order is made against the father – Where the father’s applications for a vexatious proceedings order against the mother and for removal of the independent children’s lawyer are dismissed.

Family Law Act 1975 (Cth) s 102QB

Official Trustee in Bankruptcy v Gargan (No 2) [2009] FCA 398
Pencious & Searle (2017) FLC 93-805
Potier v Attorney-General [2015] 89 NSWLR 284
State Bank of New South Wales Ltd v Stenhouse Ltd & Ors (1997) Aust Torts Reports 81-423
Westlake & Westlake [2012] FMCAfam 1497
Westlake & Westlake [2013] FamCAFC 100
Westlake & Westlake [2014] FCCA 255
Westlake & Westlake [2018] FamCA 365
Westlake & Westlake [2019] FamCA 563
Westlake & Westlake (No. 2) [2019] FamCA 608

APPLICANT: Ms Westlake

RESPONDENT: Mr Westlake

INDEPENDENT CHILDREN’S LAWYER: Mr Blayney

FILE NUMBER: BRC 6180 of 2012

DATE DELIVERED: 18 September 2019

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Carew J

HEARING DATE: 28 August 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Taylor

SOLICITOR FOR THE APPLICANT: Colville Johnstone Lawyers

FOR THE RESPONDENT: Self-represented

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Blayney, Legal Aid Queensland

Order

1. Pursuant to s 102QB(2) of the Family Law Act 1975 (Cth) (“the Act”) the respondent father be prohibited from instituting proceedings against Ms Westlake or her lawyers or the independent children’s lawyer, under this Act in a court having jurisdiction under this Act without first obtaining leave pursuant to s 102QE of the Act.

2. The respondent father’s application for a vexatious proceedings order against the applicant mother be dismissed.

3. All outstanding applications be otherwise dismissed.

NOTATION

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 of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Westlake & Westlake 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 BRISBANE

FILE NUMBER: BRC 6180 of 2012

Ms Westlake

Applicant

And

Mr Westlake

Respondent

And

Independent Children’s Lawyers

REASONS FOR JUDGMENT

1. Ms Westlake and Mr Westlake have competing applications for a vexatious proceedings order against each other. Such an order, if granted, will prevent the enjoined party from instituting any future proceedings under the Family Law Act 1975 (Cth) (“the Act”) against identified persons without first obtaining the leave of the Court.

2. I propose to grant Ms Westlake’s application for a vexatious proceedings order against Mr Westlake and to dismiss Mr Westlake’s application for a vexatious proceedings order against Mrs Westlake. My reasons are set out below.

3. For the sake of convenience, I will refer to Ms Westlake in these reasons as the mother and Ms Westlake as the father due to the previous substantive proceedings relating to parenting issues, and to assist with the future anonymisation of the judgment.

Brief background

1. The mother and father were married in 2008 and separated in 2012. They are divorced. They have two daughters, X, nearly 10 and Y, eight. The children live with the mother and have not seen the father since March 2014.

2. Over eight days in 2013, the parties were involved in a trial about their children and their property in the Federal Circuit Court and, on 20 February 2014, the trial judge made an order for the children to live with the mother and for her to have sole parental responsibility. The father was not permitted by the order to spend time with the children other than on a supervised basis.

3. The trial judge found that the children were doing well in the mother’s care and that there was no unacceptable risk of harm to the children from the mother. By contrast, the trial judge found that the children needed to be “protected from the father’s persistent beliefs about the mother, that she has sexually assaulted him and that the children are at risk of physical, emotional and sexual harm in her care”,[1] and that the father “is intent on proving allegations against the mother, and puts this need above the needs of the children”.[2] Nevertheless, the trial judge envisaged that, if the father engaged in therapy to address his persecutory beliefs about the mother, he may establish, at some future time, that there has been a significant change in circumstances sufficient to warrant the re-introduction of unsupervised time.[3]

   [1]Westlake & Westlake [2014] FCCA 255 at [237].

   [2] Ibid at [269].

   [3] Ibid at [298].

4. It is common ground that the children have not spent any time with the father since March 2014 because the father did not pay the supervisor’s fees and, as a result, they withdrew their services.[4] It is also common ground that attempts to find an alternate supervisor were unsuccessful.[5] On 21 March 2018, paragraphs 4 and 5 of the 2014 order (which made provision for the father to spend supervised time with the children) was suspended.

   [4]Westlake & Westlake [2019] FamCA 563 at [2].

   [5] Ibid at [35.d].

5. Over the past seven years, the father has instituted and/or conducted proceedings in this Court, the Federal Circuit Court, the Supreme Court of Queensland and the local Magistrates Court. He has been spectacularly unsuccessful in his litigation against the mother and others.

6. Before considering the competing applications in detail, I propose to set out the relevant statutory provisions and case law.

When can a ‘vexatious proceedings order’ be made?

The statutory provisions

1. 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 whom another person has instituted or conducted vexatious proceedings (s 102QB(3)).

2. ‘Vexatious proceedings’ include:

   (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.

   (s 102Q(1))

3. 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. 

4. 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:

   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 (s 102QB(6)).

5. 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.

6. A person against whom a vexatious proceedings order may be made must be afforded an opportunity to be heard (s102QB(4)).

7. A ‘vexatious proceeding order’ is a final order (s 102QB(5)).

Relevant authorities

What constitutes an abuse of process?

1. In the often cited authority of State Bank of New South Wales Ltd v Stenhouse Ltd & Ors,[6] 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:

   a)The proceedings are unreasonably oppressive and unfair to the other party;

   b)The proceedings will bring the administration of justice into disrepute; and/or

   c)It is sought to re-litigate something that has already been determined in previous proceedings.

   [6] (1997) Aust Torts Reports 81-423 at 64,086 - 64,089.

What does ‘frequently’ mean?

1. 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[7] concluded: ‘frequently’ has a relatively “low threshold”[8] and “both the quality of the vexatiousness of a proceeding, and the nature of the proceeding itself, inform the assessment of frequency”.[9]

   [7] [2015] 89 NSWLR 284; cited with approval by the Full Court of the Family Court in Pencious & Searle (2017) FLC 93-805 at 77,693 at [73]; see also Viavattene v Attorney General (NSW) [2015] NSWCA 44.

   [8]Potier & Attorney-General (supra) at [114].

   [9] Ibid at [116].

What particular matters should be considered before making a vexatious proceedings order?  

1. The Full Court of the Family Court in Pencious & Searle[10] cited with approval the decision of Perram J in the Federal Court of Australia in Official Trustee in Bankruptcy v Gargan (No 2),[11] 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:

   [10]Pencious & Searle (supra) at 77,694 at [75].

   [11] [2009] FCA 398 at [2]—[12]

   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].[12]

   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.

   [12] I have replaced the reference - ‘habitual and persistent’ with ‘frequently’ to reflect the term used in the Family Law Act 1975 (Cth) and the amended Supreme Court Act 1970 (NSW) which “plainly lowered the threshold condition” – per Leeming JA in Potier v Attorney General (NSW) (supra).

proceedings instituted or conducted by the father

1. In order to determine whether the father has frequently instituted or conducted vexatious proceedings, it is necessary to review the proceedings instituted, conducted or pursued by him in this Court and other courts.

The father’s appeal against interim parenting orders

1. On 20 December 2012, the father filed a Notice of Appeal against an interim parenting order made in the Federal Magistrates Court (as it then was) and which the father had consented to only 10 days earlier. The father was represented at the time that he consented to that order.

2. The appeal came before Murphy J (sitting as a single Judge of the Appeal Division) on 13 June 2013. The trial of the substantive proceedings had already commenced and was part heard, and the order appealed against had been varied on 3 May 2013.

3. The father’s Notice of Appeal contained 16 grounds of appeal. Murphy J observed: “none of the grounds as drawn can be described as proper grounds of appeal at all”.[13] By way of example, Murphy J noted ground 15, which contended that, “the father has been discriminated against in his employment as a parent due to race”.[14]

   [13]Westlake & Westlake [2013] FamCAFC 100 at [5].

   [14] Ibid.

4. In relation to the merits of the appeal, Murphy J said:[15]

   … an examination of the 16 grounds of appeal plainly indicates that, if fully argued, the appeal enjoys, in any event, very little, if any, prospects of success. Most of the matters the subject of the grounds of the appeal are matters which the father seeks to agitate at the trial of the parenting proceedings which, as I have said, is in train.

   [15] Ibid at [15].

5. Murphy J dismissed the appeal on 13 June 2013 on the basis that it lacked any merit and was in any event otiose.

6. It is apparent that the father’s appeal was instituted and/or pursued without reasonable ground. It was vexatious.

Contravention proceedings in the Federal Circuit Court

1. Prior to the ‘final’ determination of the parenting and property proceedings by order on 20 February 2014, the father instituted contravention proceedings against the mother by filing two Contravention Applications in the Federal Circuit Court on the same day i.e. 26 February 2013. One Application identified 11 separate counts of alleged contravention and the other, 130 separate counts of alleged contravention. The father repeated 130 times the following allegation for the period commencing 7 August up to 10 December 2012:

   The mother failed to provide her skype phone number. Mother continued to attempt parental alienation of the father. Mother failed to respect the privacy of the father during phone call. Mother did not speak of the father respectfully. Mother denigrated the father.

2. The father was granted leave to discontinue the Contravention Applications on 28 February 2013.

3. In my view, instituting proceedings by filing two Contravention Applications on the same day alleging 141 separate counts of contravention, 130 of which are the same alleged contravention (although allegedly occurring on different days), is an abuse of process in that such proceedings were unreasonably oppressive. Further, the proceedings are likely to have been instituted or conducted to harass or annoy the mother given the number of contraventions alleged and the fact that the proceedings were shortly thereafter discontinued by the father. The proceedings were vexatious.

Supreme Court of Queensland proceedings

1. In July 2014, (five months after the ‘final’ parenting and property order was made on 20 February 2014), the father instituted proceedings in the Supreme Court of Queensland against the mother and the mother’s solicitors by filing a claim and statement of claim. In his claim, the father described himself as “his Royal Highness, King of the Westlake Kingdom, Baron of the Westlake Region, King … 1 ATF [Mr Westlake]”.

2. In his claim, the father sought the following relief: (as per original)

   1.        Immediate restoration of the children involved to the care of myself.

   2.The court to compel the queensland police service and the public prosecutor as representatives of the crown to vigorously and thoroughly investigate the proceedings in the FEDERAL CIRCUIT COURT OF AUSTRALIA BRC6180/2012 with intent of criminal prosecution of the court officers involved in the matter if evidence of wrong doing is found.

   3.        Restoration of H Street to my estate with clear alloidal title.

   4.For the protection of law to be granted to both the children and myself. I.e. The queen to remedy or abdicate as per coronation oath of her office.

   5.For Ms Westlake to be criminally prosecuted for her abuse of myself and the children.

3. The judge observed:[16]

   The plaintiff filed an affidavit with the claim and statement of claim essentially complaining about proceedings in the Federal Circuit Court of Australia involving custody of the children of his marriage with the first defendant and orders with regard to matrimonial property.

   [16] QSC at [8].

4. In striking out the father’s claim, her Honour said:

   … None of the relief sought in the statement of claim is capable of being granted in these proceedings. Both the claim and statement of claim are manifestly groundless and should be struck out.[17]

   [17] Ibid at [27].

5. The judge ordered the father to pay the defendants’ costs on an indemnity basis given - “that the plaintiff makes extremely serious allegations against the defendants in a court without any apparent justification which are outside the jurisdiction of this court”.[18]

   [18] Ibid at [28].

6. In the father’s written submissions filed in the current proceedings, he says in relation to the Supreme Court proceedings:

   So we get to [the Supreme Court], which should never have gotten past the registry. Realistically how it got heard is a mystery to me.

7. The proceedings instituted by the father in the Supreme Court were an abuse of process in that the father sought to re-litigate matters that had already been determined in another court, and sought to bring the administration of justice into disrepute. The proceedings were instituted or pursued without reasonable ground. The proceedings were vexatious.

Enforcement proceedings against the father in the Federal Circuit Court

1. On 25 July 2014, as a result of the father failing to comply with his obligations under a final order made on 20 February 2014, the following order was made against the father:

   1.That pursuant to Section 106A of the Family Law Act 1975 (as amended) the Registrar of the Federal Circuit Court of Australia sign the following documents on behalf of the Respondent Father:

   a.Transfer of the property located at H Street, Town J in the State of Queensland

   b.Commonwealth Bank Discharge/Refinance Authority

   c.Any other document required in order to give effect to the Contract of Sale for the property at H Street, Town J in the State of Queensland. 

   2.That the Respondent Father pay the costs of the Applicant Mother’s Costs (sic) of this Application from his share of the property settlement.

1. The father filed an affidavit in response to the mother’s application to enforce the 20 February 2014 order. The father’s affidavit contained statements such as: (as per original)

   1.I am a flesh and blood human being who was live born.

   ...

   6.The orders made on 20 february 2014 by the FEDERAL CIRCUIT COURT OF AUSTRALIA were unlawfully obtained and as such are not worth the paper they are written on.

   7.The criminal activities of the persons and corporate entities involved are presently the subject of a matter before the SUPREME COURT OF QUEENSLAND.

   8.The FEDERAL CIRCUIT COURT OF AUSTRALIA and/or IT’S AGENTS and/or CONTRACTORS are specifically named in the matter.

   …

2. In my view, the proceedings were conducted by the father in such a way as to be an abuse of process in that the father sought to bring the administration of justice into disrepute. The father conducted the proceedings so as to harass or annoy, cause delay or detriment to the mother. The conduct of the proceedings by the father was vexatious.

Father’s opposition to the Divorce Application   

1. On 27 July 2016, the father filed a Response to the mother’s Divorce Application. Given the content of the Response, I set out in full the father’s allegations: (as per original)

   Set out why the Application for Divorce should be dismissed:

   The orders issued by the federal cicuit court of australia violate section 75V of the judiciaries act. The court has gone so far as to usurp the rule of law and insert it's own in making these orders. To persist with these orders as they stand would reduce a person to slavery and/or servitude.

   Do you disagree with any statement in the Application for Divorce?

   Yes (give details below)

   following the numbering from the applicant's application for divorce

   2a, Yes father wishes to attend

   2b, yes interpreter for interpreting legal terms into plain english. The same as the applicant has available to her via her legal aid sponsored legal representation.

   3 and 4 The father cannot accept the identity created for him by australia. As due to orders made by the federal circuit court of australia to do so would be to accept a contract of slavery, with no consideration. Except the ransom of his children may end.

   8 The Father has been on income protection insurance now applying for centrelink benefits as he has been unable to work due to the trauma inflicted by the court issuing orders contrary to the rule of law.

   9. The father cannot maintain a bricks and mortar residence due to Ms Westlake periodically sending junkie thugs around to attempt to assault the father.

   10. Same postal address it's been throughout brc6180/2012.

   11a. Australia was my home until it abandoned the rule of law and attempted to issue a writ of attainder and/or the order of enslavement.

   11b. Australian citizens have the right to equal protection of law. As I haven't received this clearly australia has abandoned it's side of the contract of citizenship.

   11c I was born in Australia

   11d Cannot be rsiding in australia, as the orders of the court reduce a person to slavery. Slavery has been outlawed in australia for many generations, so I cannot be in australian jurisdiction.

   12. The civil contract did not provide full disclosure of contract conditions. I.e that should I attempt to remove myself and children from the applicant's abuse that I would be held accountable for her actions and subjected to slavery and/or torture and/or attainder.

   15a. Yes

   20. yes, application for orders to be uplifted to high court due to the federal circuit court of australia being unable and/or unwilling to provide fair and just hearing due to judiciary committing treachery. Specifically by ignoring the rule of law that all are equal before it and inserting a duluth model in which the man cannot obtain protection of law.

   21. Barbara Baker stated during trial that the hearing was in neither federal or state jurisdiction. Which openly usurped the australian constitution, treachery, instead inserting a extremist radical political ideology and calling it law. I HAVE NOT SEEN THE CHILDREN IN 2 YEARS DESPITE THE ORDERS CLEARLY STATING THAT SUPERVISED VISITATION WERE TO OCCUR.

   The orders ensure that the mother can exercise the control, as if owned, over the father because he could not afford to continue to pay ransom monies to see the children at K Contact Centre. I have made numerous attempts to get visitation happening again, however the mother is under no compulsion to even consider doing it. So she has denied contact for 2 years but I'm sure once again the court will blame the father and find way to extract more money which he doesn't have from him. Just so he can see the children.

   It's called a bill or writ of attainder, it's contrary to the rule of law, it advances a radical extremist political ideology, but hey I'm sure the court will find a way to continue to act outside of the constitution and further facilitate the abuser in ensuring the children are denied their father, because men can't be victims only perpetrators. The court and the lawyers couldn't make money if they couldn't get people back 5+ times because justice is sold.

2. The divorce was granted in September 2016.

3. The proceedings conducted by the father were an abuse of process in that they sought to bring the administration of justice into disrepute and sought to re-litigate something that had already been determined. The father sought to delay the granting of the divorce without any reasonable ground. The conduct of the proceedings by the father was vexatious.

Domestic violence proceedings in the local Magistrates Court

1. On 8 March 2017, the father filed, at the Suburb L Magistrates Court, an application for a domestic violence protection order naming the mother as the respondent. The father, in detailing the grounds on which he sought a protection order, made similar allegations to that which he has continued to make throughout all the proceedings, including: that the mother has engaged in criminal activities; that the mother has perverted the course of justice; that the mother has sent “armed goons” to his motorhome to attempt to harm him; that the mother has, and continues to, abuse the children; and that the mother has fabricated evidence.

2. At the first return date of that application, the Magistrate issued a temporary protection order in favour of the mother and declined to make one in favour of the father.

3. On 21 April 2017, the father filed an application to vary the temporary protection order on the basis that the mother had abandoned her application. The father’s application was summarily dismissed on 3 May 2017.

4. At the final hearing of the domestic violence matters on 20 June 2017, the father’s application for a protection order was dismissed and he was ordered to pay the mother’s costs of the application in the amount of $6,000.

5. The institution and conduct of the domestic violence proceedings by the father was an abuse of process in that the father sought to re-litigate matters that had already been determined in another court. The proceedings were instituted and conducted in a way so as to annoy or harass, cause delay or detriment to the mother. They were vexatious.

Contempt proceedings instituted in the Family Court

1. On 16 May 2017, the father instituted contempt proceedings against the mother alleging, among other things, that “the mother sent people to the father’s home to kill him”. The father discontinued his contempt application on 31 July 2017. In my view, the proceedings were instituted so as to annoy or harass the mother and were vexatious.

Application in a Case – 27 June 2017

1. On 27 June 2017, the father filed an Application in a Case in this Court seeking:

   Stay of proceedings until the case guardian has sufficient time to consider proceedings and perform necessary investigations;

   A stay of a costs order made by the Suburb L Magistrates Court on 20 June 2017; and

   Restoration of supervised contact at the P Contact Centre as per agreement reached between the parties before the respondent was advised not to allow the visitation to proceed by her lawyers.

2. The father’s application was ultimately dismissed on 11 April 2019. The proceedings were, in my view, instituted and conducted to harass or annoy, delay or cause detriment to the mother. The father was assessed by a psychiatrist. He was not found to be in need of a case guardian. The proceedings were instituted without reasonable ground, given that there was no jurisdiction for this Court to stay a costs order made in another court. The proceedings were vexatious.

Application in a Case – 8 March 2018

1. On 8 March 2018, the father filed an Application in a Case in this Court seeking:

   a)Leave to apply for removal of proceedings to the High Court of Australia;

   b)Leave to present request to intervene and legal aid compliant to Attorneys General (Cth and Qld);

   c)Leave to present “said information” and “proof of leave” to Governor General and Her Majesty the Queen;

   d)Leave to present request to intervene and legal aid complaint to “Queensland Minister for child safety, Minister for prevention of domestic and family violence and former Minister of the same office”;

   e)Leave to discuss the matter with Ms Julia Gillard and Mr M of an organisation; and

   f)Leave to apply for Writ of Mandamus to the High Court of Australia.

2. The father’s application was dismissed on 24 May 2018 and the father was ordered to pay costs. The proceedings, in my view, were instituted to annoy or harass the mother and were without reasonable ground, as found by Forrest J. The proceedings were vexatious.

Application in a Case – 7 May 2019  

1. On 7 May 2019, the father filed an Application in a Case seeking:

   a)That the independent children’s lawyer (“ICL”) be replaced with a non-biased, competent ICL; and

   b)An order stating that all parties to the matter are to be afforded procedural fairness.

2. This application is pending.

3. In support of that application, the father relies upon an affidavit in which he deposes, among other things: (as per original)

   1.… the stolen generation/force family separation practice that has occurred in the proceedings to date.

   2.… disrespecting the master is why the slave was abused. This is the abandonment by state which I have referred to throughout proceedings. …

   3.I believe the FAMILY COURT OF AUSTRALIA lacks jurisdiction to deal with stolen generation/forced family separation cases. Indeed a similar case Trevorrow v South Australia was ultimately dealt with in the high court.

   4.The FAMILY COURT OF AUSTRALIA does have jurisdiction to deal with an independent children’s lawyer no acting in an impartial independent capacity when representing the children’s interests.   

   5.The FAMILY COURT OF AUSTRALIA does however have jurisdiction to deal with parenting cases involving arbitrary sale or denial of justice, arbitrary labeling of the father as suffering a mental condition when he did not, substantial miscarriages of justices, suppresion of evidence, gender bias on interpretation of domestic violence. 

   …

   6.The Father highlighted this inter generational pattern of abuse by the Mother and Her Mother in his affidavits. The ICL arbitrarily ignored this pattern because of the perpetrator’s gender.

   7.The Mother’s legal representatives allegedly ‘lost’ her disclosure …

   8.Even though the Mother and her representatives knowingly supressed this evidence to prevent, pervert or defeat justice. …

   …

   16.The ICL knowingly failed to act in the best interests of the children to determine who was abusing the children. By arbitrarily dismissal of the Father’s allegations the ICL reduced the Children in the matter to chattel property of the Mother.

   17.The ICL through non feasance participated in and facilitated a forced family separation/stolen generation practice.

   …

   26. The bias of the ICL is most strikingly illustrated in his chronology …

   …

   32.The ICL knowingly supported the registrar ensuring that the stolen generation never comes home, never restores contact with their family …

   …

   34.The court has only one ambiguous course of action in this matter, address the organised stolen generation practices for the combined criminal purpose of making, keeping and trading child slaves occurring in both family law courts. Replace, the ICL, set aside every order tainted by the suppression of evidence, bring the stolen generation home.

4. The father, as noted above, frequently makes reference to the ‘stolen generation’, which is a term used in an entirely different context in Australia, relating to indigenous children. It has no application to the current circumstances. The father does not claim indigenous heritage nor does he identify as indigenous.[19]

   [19] See report of Dr F filed 5 April 2019 at page 50.

5. As to the father’s application to remove the ICL, it would appear that the father misunderstands the role of an ICL who, contrary to the apparent understanding of the father, does not make decisions about where and with whom children are to live and spend time. The role of the ICL is to represent the best interests of the children and, in carrying out that role, present evidence to Court and make recommendations. The ultimate decision of what parenting order is made is one for the Court alone.

6. The father has made numerous complaints about the conduct of the ICL throughout the proceedings, including sending a formal complaint to Legal Aid Queensland on 5 March 2018 in which the father accused the ICL of facilitating fraud and abuse of the father.

7. The father’s so-called ‘evidence’ filed in support of his application (filed 7 May 2019) to remove the ICL is nothing of the sort. The content of his affidavit makes numerous assertions and allegations, and demonstrates the father’s continued unhelpful obsession with the outcome of the 2013 trial.

8. The father’s submissions in support of his application make scandalous claims including that the ICL’s support for a vexatious proceedings order against the father “facilitates the Mother murdering the Father”.

9. I propose to dismiss the application as it is an abuse of process. In any event, it is otiose given that there are no ongoing parenting proceedings.

Father’s attempt to reverse living arrangements of children - dismissed on 16 August 2019

1. On 16 August 2019, the father’s application[20] to re-litigate the living arrangements for the children was dismissed.  My reasons for judgment include the following findings: that the father’s reasons for seeking a reversal in living arrangements for the children “demonstrate that there has been no abatement of the father’s beliefs [about the mother]”; that his beliefs “have become even more extreme”; that his “persecutory beliefs … also appear to continue unabated”; the father remains “intent on proving allegations against the mother, and puts this need above the needs of the children”[21] and that the father’s beliefs about the mother had not “diminished in their intensity and focus”.

   [20] The mother was substituted as the applicant by order made 16 May 2017 when the father’s initiating application filed 2 March 2017 was discontinued.

   [21] Adopted by me from the reasons for judgment of Judge Baker.

2. The father’s application did not establish any change in circumstances that would warrant a reversal in the living arrangements of the children, and the material relied upon by him was replete with his ongoing criticism of the previous parenting proceedings. It was an attempt to re-litigate matters that had already been determined. The proceedings pursued by the father were vexatious.

Application in a Case – 19 August 2019

1. On 19 August 2019, the father filed an Application in a Case seeking:

   Stay on further proceedings in this matter until after Appeal from orders made 16 august 2019 is heard. To prevent a miscarriage of justice

2. It was clarified during the hearing on 28 August 2019 that what the father was intending to achieve by his Application was a stay or adjournment of the hearing of the competing vexatious proceedings order applications until after the hearing of his appeal against the order made on 16 August 2019 (which dismissed the father’s application to re-litigate parenting matters).

1. In dismissing the father’s Application, I made the following observations:

   10. The father’s written submissions on this point commence with the following: (as per original)

   Realistically it does not matter what I write here as the court has already condemned the children and the Father to further the court’s slave trade. In effort to hide organised reduction of children to chattel property of the Mother.

   11. The father’s written submissions continue for a further nearly nine pages. Regrettably, it is difficult to discern any basis for a stay/adjournment of the hearing of the vexatious proceedings order applications in the written submissions. The written submissions can perhaps best be described as a repetition of the father’s many complaints and grievances about the family law proceedings and domestic violence proceedings that he and the mother have been involved in over many years. Similar matters were addressed by the father in his material relied upon in support of his application that was dismissed by me on 16 August 2019.

2. The father’s oral submissions did not advance matters.

3. In my view, the institution of this proceeding further harassed or annoyed the mother given that the material relied upon by the father, together with his submissions, repeat for the umpteenth time the same old complaints and accusations. The proceeding was vexatious.

Conclusion – should a vexatious proceedings order be made against the father?

1. There have been at least 13 proceedings instituted or conducted by the father in this and other courts that I have found to be vexatious. Even if I am wrong to find that all of the proceedings identified were vexatious, there are nevertheless sufficient vexatious proceedings to conclude that the father has frequently instituted, conducted or pursued vexatious proceedings.

2. The father has demonstrated a refusal ‘to understand the principles of finality of litigation’. He has no insight. The father’s rather bizarre polemics do nothing to persuade me that he will cease his propensity to institute vexatious proceedings without intervention.

3. Accordingly, I propose to make a vexatious proceedings order against the father, which will enjoin him from instituting any further proceedings against the mother, her lawyers, or the ICL under the Act without first obtaining leave.

The Father’s application for a vexatious proceedings order against the mother

1. The father has failed to identify any proceeding instituted, conducted or pursued by the mother that was vexatious. His application will be dismissed.

Conclusion

1. 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. The consequence of such an order will prevent the father instituting any future proceedings under the Act without first obtaining leave of the Court. In addition, as the father’s outstanding application to remove the ICL is itself vexatious and otiose, I propose to dismiss it.

2. The father did not address any basis upon which a vexatious proceedings order could be made against the mother. Accordingly, his application will be dismissed.  

3. Finally, I observe that the father’s continuing focus upon the outcome of proceedings finalised on 20 February 2014 (against which he did not appeal) is not only futile but entirely self-focused. Very little is mentioned in the tomes produced by the father about his children, who no doubt would love to be able to have a normal relationship with him. It is unfortunate that the father’s endless energy has not been directed to seeking professional help in managing his views about the mother in a way that does not impact on the children. This was the very hope expressed by the trial judge in 2014. It fell, as anticipated, on ‘deaf ears’.

I certify that the preceding seventy-five (75) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Carew delivered on 18 September 2019.

Associate: 

Date:  18 September 2019