Xiu and Hodges (No 2)

[2017] FamCA 437

FAMILY COURT OF AUSTRALIA

XIU & HODGES (NO 2) [2017] FamCA 437

FAMILY LAW – PRACTICE AND PROCEDURE – Leave to file – where mother seeks leave to file an Initiating Application to vary final parenting orders – where father seeks leave to file a contravention application – applications for leave to file granted.

Access to Justice (Federal Jurisdiction) Amendment Act 2012 (Cth), sch 3
Family Law Act 1975 (Cth), ss 68B(2), 68B(3), 118

Hodges & Xiu [2016] FamCA 49
Xiu & Hodges [2013] FamCA 175
Xiu & Hodges [2017] FamCA 131

APPLICANT: Ms Xiu

RESPONDENT: Mr Hodges

FILE NUMBER: MLC 6222 of 2008

DATE DELIVERED: 23 June 2017

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Thornton J

HEARING DATE: 6 June 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Hamilton

SOLICITOR FOR THE APPLICANT: Victoria Legal Aid

COUNSEL FOR THE RESPONDENT: Mr Baume

SOLICITOR FOR THE RESPONDENT: MDL Law

Orders

1. The mother is granted leave to file the draft Initiating Application attached to her Application in a Case filed 19 December 2016 together with the supporting affidavit filed 14 March 2017.

2. The mother’s Application in a Case filed 19 December 2016 is otherwise dismissed.

3. The father is granted leave to file his draft Application – Contravention attached to his Amended Application in a Case filed 9 May 2017 together with his supporting affidavit filed 9 May 2017.

4. The father’s Amended Application in a Case filed 9 May 2017 is otherwise dismissed.

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  Xiu & Hodges 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 MELBOURNE

FILE NUMBER: MLC 6222  of 2008

Ms Xiu

Applicant

And

Mr Hodges

Respondent

REASONS FOR JUDGMENT

Introduction

1. The parents of K who is now 15 years of age have been in dispute for most of his life about what parenting arrangements are in his best interests.  His physical and intellectual disabilities essentially require 24/7 care.

2. There has been extensive litigation in this Court including two long trials conducted by Dessau J.  The first trial was heard over a period of 10 days in June 2007 and the second trial in June 2011 over about 12 days.  Final parenting orders were made by Dessau J on 14 February 2013 after a third further hearing.  When those orders were made, Dessau J also made an order restraining both parties from filing any application under the Family Law Act 1975 (Cth) (“the Act”) without first obtaining the leave of a judicial officer. There was no appeal against the orders of Dessau J.

3. Both parties now seek leave to file applications.

4. Cronin J dismissed further interim applications brought by each parent on 10 February 2016 in circumstances where both parties had agreed to those applications being heard and limited leave was given for an interim hearing.  Cronin J also made the following order:

   (3) Should any application for leave by either party be made hereafter, IT IS DIRECTED that such application be filed with the Court and forthwith served upon the other party who is the respondent to that application.

5. In the reasons for judgment, Cronin J pointed out that there were no applications for final orders made before him and any applications for leave should be made by way of the filing of an Application in a Case restricted to leave supported by an affidavit to which a draft application for final (and if necessary, interim) orders should be attached.[1]

   [1]Hodges & Xiu [2016] FamCA 49, [10] and [59].

6. The mother was granted an adjournment of her Application in a Case filed 19 December 2016 before Johns J in the Judicial Duty List on 7 February 2017 to:

   …enable the mother to obtain current material, and also to give her an opportunity to reflect and perhaps amend her Application so that the focus of any application is on issues sought to be ventilated, rather than a list of issues that have been agitated previously and which are not really issues sought to be raised in the context of this current application.[2]

   [2]Xiu & Hodges [2017] FamCA 131, [7].

7. Johns J also made it clear that supporting material should focus on the current position since the last hearing before Cronin J and that the parties should not embark on an historical journey through the affidavit material that has been filed since 2008.

8. The mother brings an Application in a Case filed 19 December 2016 for leave to file an Initiating Application to vary final parenting orders made by Dessau J on 14 February 2013.  This application was initially opposed by the father but he now consents to leave being granted to the mother to file the application because he also seeks leave to file his contravention application.

9. The father brings an Amended Application in a Case filed 9 May 2017 seeking leave to file a contravention application.  The mother initially opposed his application for leave but now consents to leave being granted to the father because she also seeks leave.

10. The mother’s Application in a Case annexed a draft Initiating Application and the father’s Amended Application in a Case annexed a draft contravention application.  Each party relied upon an affidavit in support of the respective applications and the hearing proceeded by way of submissions only. 

11. There was some discussion about whether the injunction had been made under s 118 of the Act.

Restraining orders

1. Although ultimately both parties consented to each having leave to file the applications it is a matter for the discretion of the Court as I regard the order of Dessau J as having been made pursuant to s 68B(2) of the Act because neither party was referred to in the judgment as a vexatious litigant under s 118 of the Act as it then was. The restraint was made on both parents in the context of lengthy litigation and concerns about the litigation distracting the parents from the best interests of the child. There is no reference in the judgment to the Court having been satisfied that the proceedings were vexatious or frivolous and no reference to an application being made pursuant to s 118 of the Act as it then was.

2. The Access to Justice (Federal Jurisdiction) Amendment Act 2012 (Cth) contains provisions which concern vexatious proceedings (Schedule 3). This legislation received Royal Assent on 11 December 2012 and Schedule 3 commenced on 12 June 2013. However, Schedule 3 only applies to applications initiated on or after that date.

3. It is s 118(1)(c) of the Family Law Act, now repealed, which might have applied at the time that the order was made by Dessau J on 14 February 2013.

4. Section 118(1) provided as follows:

   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.

5. It does not appear that there was any application to the Court for the person who instituted the proceedings to be restrained.

6. At paragraphs 36 and 37 of the reasons for judgment, Dessau J said:

   The first is that there must be a stop to this endless litigation and it is very hard for me to feel confident that it will occur. I am concerned that there is a mindset in this family that the court is the place of first resort when there is an issue with [K].

   There will always be contentious issues in parenting children even when parents remain together, but certainly when they separate, there are bound to be more complications. With the degree of care that each parent needs to give [K], the complications here are more profound. But if they rush to court every time there is an issue, then their energy and money and time is diverted.[3]

   [3]Xiu & Hodges [2013] FamCA 175.

7. Further, at paragraph 39 Dessau J said:

   I will make an order restraining each parent from returning to court without leave of a judge. I am concerned that they must not interpret that order, to think that it simply means, “so each time we go to court we just get to leave of the judge first”.  The idea is that the court will be closed off to them, unless there is a genuinely new and serious issue that only a court can address.

8. As mentioned previously, I consider the restraint made by Dessau J to be made under s 68B(2) of the Act. Section 68B(2) and (3) of the Act provides:

   (2)A court exercising jurisdiction under this Act (other than in proceedings to which subsection (1) applies) may grant an injunction in relation to a child, by interlocutory order or otherwise, in any case in which it appears to the court to be just or convenient to do so.

   (3)An injunction under this section may be granted unconditionally or on such terms and conditions as the court considers appropriate.

9. Section 68B(2) and (3) are in broad terms.

10. The question is what criteria should be applied by this Court in considering whether leave should be granted to file the applications.  Dessau J referred to the Court being “closed off to [the parties], unless there is a genuinely new and serious issue that only a court can address.”[4]

    [4]Xiu & Hodges [2013] FamCA 175, [39].

Conclusion

1. During adjournments of the matter in the Judicial Duty List for the filing of appropriate material, the parties have attempted mediation unsuccessfully. 

2. The father acknowledges that he has been taking the child out late at night but does not agree that this is detrimental to the child.  There are issues concerning the child’s secondary education and whether the one day of home-schooling continues to be in the best interests of the child having regard to his attendance during part of the week at mainstream secondary school.  The changeover point when the child is to spend time with the father remains an issue.  The father claims that the mother has had the child sedated and vaccinated without his consent and in breach of the orders.  A contravention of an order of this Court is a serious matter. 

3. I am satisfied that whilst some of these issues have already been determined in the past, the application for contravention raises a new potentially serious issue and it would appear that the parties have unsuccessfully attempted to mediate continuing issues which include the child’s secondary schooling.  This is all in the context of the child in all likelihood requiring 24/7 care until he is beyond the jurisdiction of this Court.

4. In these circumstances I am satisfied that not only is it in the child’s best interests to resolve these issues having regard to the length of time that the issues have persisted but that it is open to the parties to argue that there would appear to be new and serious issues which have arisen.

5. This does not mean that I make any finding about whether new facts and circumstances have arisen such as to justify re-opening the case or that the principles of Rice & Asplund (1979) FLC 90-725 do not apply. The evidence remains untested and these are matters for further hearing and determination.

6. I am satisfied that it is in the best interests of the child and it is appropriate to grant leave for each party to file the draft applications attached to their applications for leave to file together with the supporting affidavit in each case.

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Thornton delivered on 23 June 2017.

Associate: 

Date:  23 June 2017