WORRELL & SUNNER

[2009] FamCA 824

FAMILY COURT OF AUSTRALIA

WORRELL & SUNNER [2009] FamCA 824

FAMILY LAW – PRACTICE AND PROCEDURE – Section 118 order – Order proposed to be made by consent – Necessity for all constituent elements of s 118 of the Family Law Act to be fulfilled – Powers of registrars to make s 118 orders

Family Law Act 1975 (Cth)

Ex parte Skyring 135 ALR 29
Harris v Calladine (1991) FLC 92-217
O'Sullivan and O'Sullivan (1991) FLC 92-216
Rice v Asplund (1979) FLC 90-725

APPLICANT: Ms Worrell

RESPONDENT: Mr Sunner

FILE NUMBER: MLC 1254 of 2009

DATE DELIVERED: 3 SEPTEMBER 2009

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: THE HONOURABLE JUSTICE CRONIN

HEARING DATE: 3 SEPTEMBER 2009 IN CHAMBERS

REPRESENTATION

SOLICITOR FOR THE APPLICANT: MANBY AND SCOTT LAWYERS

SOLICITOR FOR THE RESPONDENT: MATHEWS FAMIY LAW

Orders

1. That BY CONSENT there be orders in accordance with paragraphs 1 to 9 of the minutes of proposed orders marked Exhibit “A” sealed and attached hereto AND IT IS DIRECTED that such minutes remain upon the Court file.

2. That the proposed order numbered 10 pursuant to s 118 of the Family Law Act 1975 (Cth) is not made.

3. That there be liberty to apply in respect of issues arising out of paragraph 2 of these orders.

4. That all proceedings be otherwise dismissed.

5. That pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

6. That the solicitor for the husband engross the minutes, including paragraph 10 of those minutes and deliver them by electronic transmission to my Associate within 7 days.

IT IS NOTED that publication of this judgment under the pseudonym Worrell & Sunner is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 1254 of 2009

MS WORRELL

Applicant

And

MR SUNNER

Respondent

REASONS FOR JUDGMENT

1. This matter has been transferred to me by the Registrar to determine whether or not to make final orders.

2. The unusual feature of the case is that the parties consent to the orders and normally there would be little doubt that the Court would make them. Save for one order, what the parties seek are parenting orders. There is no difficulty with those.

3. The Registrar’s hesitation arose out of a final order to which both parties seem to have consented that reads:

   That save for the purpose of seeking leave, the wife be and is hereby restrained from issuing any further application under the Family Law Act without the prior leave of the Court.

4. Both parties appeared before the Registrar accompanied by legal practitioners.

5. The record of the Registrar on that day reads as follows:

   Wife does not wish to be heard in respect to the restraint to issue proceedings.

6. The Registrar declined to make the consent order on the basis that she was not sure that it fell within the delegated power. I think it does fall within the delegated power but in this case, the Registrar was correct to decline to make the orders for the reasons that follow.

7. This case is about two children. M is now 14 years of age and A is 12. They live with their father and pursuant to the orders which I will make by consent of the parties, that situation will continue. Importantly, under the proposed orders, the wife is to spend no time with nor communicate with, the children.

8. The litigation between the parties began in June 2000. Over the ensuing years there have been in excess of 20 court hearings.

9. In September 2006, final orders were made that the wife was to spend time with the children “as directed” by a psychologist. Those orders were made by consent of both parties.

10. The immediately relevant application was filed by the wife on 17 February 2009. It sought to discharge the 2006 orders and provide for the wife to spend time with the children under supervision and that a timetable of future contact be “gradually broadened” over time.

11. On 29 May 2009, a Child and Parents Issues Assessment was released to the parties. It was recorded that A spoke negatively of his mother. M was recorded as saying that he wanted a normal life without his mother interfering. He remained steadfast in his views and did not wish to “reconnect” with his mother.

12. On 15 June 2009, the wife filed a notice of discontinuance of her February application but that still left the response of the husband alive. The husband had sought a dismissal of the wife’s application and other orders.

13. On 14 August 2009, the wife filed a reply to the husband’s response in which she sought an order that one of the children spend time with and communicate with his “half sister”. That change of direction was as a result of comments in the Child and Parents Issues Assessment.

14. It is clear from the minutes of orders now before me that the wife is again consenting to orders that do not provide for specific time with the children.

15. The application commenced in February 2009 was prepared by the practitioner who appeared for the wife. He also told the Registrar that the wife did not wish to be heard on the restraint application upon the matter being resolved between the parties.

16. An order under s 118 of the Family Law Act 1975 (Clth) can be the subject of a consent order but only upon the parties satisfying the court that it is appropriate for the order to be made. That is because:

    (a)whilst it does not deny a person access to the courts and justice per se, it is a significant infringement on an accepted right in our community;

    (b)a number of aspects of s 118 have to be satisfied; and

    (c)the very wording of the section requires that an order only be made if the Court considers it “appropriate”.

17. Section 118 of the Act reads as follows:

    (1)      The court may, at any stage of proceedings under this Act, if it is satisfied that the proceedings are frivolous or vexatious:

    (a)      dismiss the proceedings;

    (b)make such order as to costs as the court considers just; and

    (c)if the court considers appropriate, on the application of a party to the proceedings--order that the person who instituted the proceedings shall not, without leave of a court having jurisdiction under this Act, institute proceedings under this Act of the kind or kinds specified in the order;

    and an order made by a court under paragraph (c) has effect notwithstanding any other provision of this Act.

    (2)      A court may discharge or vary an order made by that court under paragraph (1)(c).

18. The first point to make is that there must be a finding that the proceedings are frivolous or vexatious. The necessity to make that finding could be overcome by an acknowledgement by a party that their proceeding was either frivolous or vexatious however, because of the nature of the order, the acknowledgment must be clear and unequivocal. In this case, although the wife apparently consented to the order as evidenced by her signature to the minute, her lawyer told the Registrar that the wife did not wish to be heard on the subject. That would not be sufficient in my view to satisfy the test of appropriateness.

19. The second point is that even if the Court could construe the consent as an acknowledgment of the frivolous or vexatious nature of the proceedings, there still needs to be a dismissal of the proceedings and then an order made under the section. There was clearly a dismissal of the proceedings here but not because of them being frivolous or vexatious but rather because they were otherwise concluded.

20. The third point is that particularly in parenting cases, a court should be slow to make an order which may slow down or even prevent access to the courts. Where there is a history of unnecessary or persistent applications, leaving aside the oft-argued principles set out in Rice v Asplund (1979) FLC 90-725, there is a alternative to an order under s 118 which is to seek an order for a stay of the proceedings based upon them being an abuse of process. The latter arises from an inherent power of the Court. Section 118 of the Act is prospective in its application forbidding the institution of proceedings without leave, the stay application is reactive. Whilst it might be said the difference is subtle if indistinguishable, a court should always be reluctant to restrain access to justice. That principle was made clear by the Full Court in O'Sullivan and O'Sullivan (1991) FLC 92-216, (Barblett DCJ, Nygh and Mullane JJ) where their Honours said that the right to commence proceedings in the courts was of fundamental importance in our legal system and that the power to limit that right contained in s 118(1)(c) should ''be exercised with caution'' and reserved for the clearest of cases. See also the comments of Kirby J in Ex parte Skyring 135 ALR 29 at 31-32. Those comments are important because in reality, an order under s.118 does not preclude an application being made for leave to issue proceedings but it does make it harder to get access to substantive justice. In summary therefore, strict compliance with all of the elements of the section is required and the consent of a party even if accepted as voluntary, does not overcome the importance of establishing the presence of those requirements.

21. In this case, there was no application to the Court between 2006 and 2009. There is no evidence upon which a court could make a finding that the proceedings were frivolous or vexatious warranting their dismissal based upon the history alone.

22. In the circumstances, I am not convinced that the wife’s concession by agreeing to the orders is a sufficient satisfaction of the requirements of s 118 to be able to say that it is “appropriate” to make the order.

23. Finally, I turn then to the question of whether a registrar could make the orders if there was a genuine consent in the terms I have set out.

24. Chapter 18 of the Rules sets out what is delegated by the Court to registrars. Item 11 of Table 18.5 (but under the descriptive heading of “for information only”) provides that a “Deputy Registrar” has power to make an order in relation to a consent order. Ignoring the information only column, the delegation relates to Part 10.4 of the Rules. Rule 10.15(1) provides that in a current or active proceeding, an oral application could be made for orders. Rule 10.17 sets out what a court could do with an application for consent orders. Thus as occurred here, an oral application could be made to a registrar as part of an overall consent order. That does not alter the responsibility of the registrar to be confident that all of the elements of the section are satisfied and that the orders are appropriate.

25. The word “appropriate” is used in s 118 which makes clear that inquiry must be made by the Court. There are similar provisions elsewhere in the Act where that sort of inquiry has to be made before the power of the Court enables the orders to be made. One such example is in s 79 of the Act which provides that a court may make such order as it considers “appropriate”. However, the court must not make the order unless it is satisfied that it is just and equitable to do so.

26. The High Court in Harris v Calladine (1991) FLC 92-217 had no difficulty in orders being made under s 79 by registrars provided the delegation of judicial power was to persons and on terms that ensured that the judicial process was observed.

27. The persons to whom the delegation is made are clearly identified and the judicial process of review in the Family Law Rules 2004 provides the method of supervision as well as the control over the delegated functions. Those review provisions would apply to a consent order under s 118 made by a registrar.

28. It is also relevant that in respect of s 118 orders, any subsequent application to seek leave to commence substantive proceedings would have to be heard by a judge and not a registrar because of the limitation on the delegation. Thus, there is power for a registrar to make an order under s 118 of the Act by consent of the parties but subject to the restrictions mentioned above.

29. In this case, all of the constituent elements to make a s 118 order were not present despite what appears to be a consent of the parties on its face. That order will therefore not be made.

30. The parties however can have liberty to apply to argue the matter comprehensively in open court should they so desire.

I certify that the preceding Thirty (30) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate: 

Date:  3 September 2009