Xuarez and Vitela (No. 3)

[2017] FamCA 1108

FAMILY COURT OF AUSTRALIA

XUAREZ & VITELA (NO. 3) [2017] FamCA 1108

FAMILY LAW – PRACTICE AND PROCEDURE – Application by the mother for a vexatious proceedings order pursuant to s 102QB of the Family Law Act1975 (Cth) – Where the father has frequently instituted vexatious proceedings in Australian courts – Where a final vexatious proceedings order is made prohibiting the father from instituting proceedings against the mother and/or her legal representatives under the Family Law Act 1975 (Cth) – Where all extant applications are dismissed.

Family Law Act 1975 (Cth)

Cannon & Acres [2014] FamCA 104
Marsden & Winch (2013) FLC 93-560

Official Trustee in Bankruptcy & Gargan (No 2) [2009] FCA 398

Pencious & Searle [2017] FamCAFC 210

Potier v Attorney General (NSW) (2015) 89 NSWLR 284

Viavattene v Attorney General (NSW) [2015] NSWCA 44

APPLICANT: Mr Xuarez

RESPONDENT: Ms Vitela

FILE NUMBER: BRC 7312 of 2007

DATE DELIVERED: 22 December 2017

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Carew J

HEARING DATE: 30 November 2017

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Self Represented

COUNSEL FOR THE RESPONDENT: Ms E

SOLICITOR FOR THE RESPONDENT: N Firm

orders

1. That pursuant to s 102QB(2) of the Family Law Act 1975 (Cth) Mr Xuarez be prohibited from instituting proceedings against Ms Vitela or any of her legal representatives (past or present) under this Act in a court having jurisdiction under this Act.

2. All extant applications are 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 Xuarez & Vitela (No. 3) 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: BRC7312 of 2007

Mr Xuarez

Applicant

And

Ms Vitela

Respondent

REASONS FOR JUDGMENT

1. The applications before the Court for final determination are paragraphs 9 and 10 of the Amended Initiating Application filed by the applicant (hereinafter referred to as “the father”) on 17 June 2015 which seeks:

   9. That the Court make an order under the Family Law Act 1975 – Section 118, that all the Mother’s proceedings against the Father, be dismissed. (Federal Law).

   10. That the Court make an order under the Family Law Act 1975 – Section 102QB against the Mother for Vexatious Proceedings. (Federal Law).

   And the Response to an Application in a Case filed by the respondent (hereinafter referred to as “the mother”) 21 June 2017 as amended[1] which seeks the following:

   [1] See Minute of Order sought marked exhibit 3 in the proceedings

   1. That the Application filed by the Father seeking orders that the Mother be deemed vexatious be dismissed.

   2. That pursuant to s 102QB(2) the Applicant Father [Mr Xuarez] be prohibited from instituting any further proceedings under the Family Law Act 1975 (as amended).

   3. That pursuant to s 114(3) of the Act, the Applicant Father be restrained and an injunction issue restraining him from serving the Respondent Mother, or her legal representatives, with any application for leave to institute any further proceedings under the Act without leave of the Court.

   4. That in the event the Applicant Father is granted leave to institute further proceedings, the Court shall consider whether an order for security for costs should be made, pursuant to s 102QB(2)(c).

   5. That pursuant to either s 68B or s 114(3) of the Act, the Applicant Father be restrained, and an injunction issue restraining him, from publishing in any way whatsoever, including but not limited to publication on the Internet on any website, twitter, email, Facebook or other written material any reference to these proceedings, including but not limited to the names and contact details of:

   a. The Mother, [Ms Vitela];

   b. Any of the parties’ children;

   c. The legal representatives of the Mother, past or present, including Counsel:

   d. Any Independent Children’s Lawyer appointed in these proceedings, past or present, including Counsel;

   e. Any Family Report Writer engaged in these proceedings; and

   f. Any reference to any legal and judicial officers of the Family Court of Australia and the Federal Circuit Court of Australia.

2. The mother’s application seeking to enjoin the applicant from an anticipatory breach s 121 of the Family Law Act 1975 (Cth) (“the Act”) arises from the intentions expressed in the father’s affidavit filed on 2 November 2017 in support of his application. The relevant paragraphs are in the following terms:

   60. If I am declared a vexatious litigant by Justice CAREW or any Judge of the Family Court of Australia to protect, cover up perjurers, then, I have no option but to expose, shame and denounce all of them by name in websites around the world, lodge Judicial complaints, submit and participate in the Family Law Review to be held by the Australian Law Reform Commission (ALRC), lodge complaints (Human Rights Communications) under the International Covenant on Civil and Political Rights (ICCPR) to the Office of the United Nations High Commissioner for Human Rights – Human Rights Council Branch – Complaint Procedure Unit – OHCHR – Palais Wilson, United Nations Office at Geneva, CH-1211 Geneva 10, Switzerland.

   61. The Proceedings BRC7312/2007 and all Judges, Legal Officers, Independent Children’s Lawyers, Family Consultants/Report Writers, Expert Witnesses, etc., involved in the BRC7312/2007, including Appeals Proceedings will be worldwide exposed, denounced, shamed and named in websites.  

3. On 29 September 2017 the applications were listed for final hearing and on 30 November 2017.

4. On 27 November 2017 the father was refused permission to appear at the hearing via telephone. The father’s personal appearance was required.

conduct of hearing on 30 November 2017

1. Notwithstanding the father’s failure to appear, the matter proceeded on the basis that his application would nevertheless be determined on its merits and I had regard to the contents of his affidavit filed in support of his application on 2 November 2017.

2. The mother’s material comprised her affidavits filed 21 June 2017 and 15 November 2017, a summary of argument filed 27 November 2017, a Notice of Appeal filed by the applicant on 30 November 2017 (exhibit 1) and a List of Applications and Outcomes relevant to these parties (exhibit 2). The mother also relied upon 15 judgments delivered by this Court (including the Full Court) and other courts involving these parties or the father and other parties often connected to the mother in some way e.g. former legal representatives.

background

1. The parties to this litigation have been involved in court proceedings for over 10 years.

2. The father is 62 years of age and the mother is 48 years of age. The parties met and commenced cohabitation in 1987 before immigrating to Australia in 1989. They have five children together, Mr J (26), Mr L (22), Mr C (19), D (17) and B (14). The children have not spent any time with the applicant since in or about 2009. 

3. Proceedings were commenced by the mother on 18 June 2007 and on 24 August 2007 a final parenting order was made by consent for the parents to have equal shared parental responsibility; that the children live with the mother and spend time with the father as agreed or each Saturday afternoon.

4. On 30 September 2008 the father filed an Application – Contravention against the mother and on 2 March 2009 his application was dismissed with costs fixed in the sum of $410.

5. On 30 September 2010 the father applied to vacate the 2007 parenting order.

6. In a family report dated 18 July 2011 it was recommended that the father have no contact with the children until the allegations relating to the applicant’s physical abuse were tested.

7. On 15 November 2011 the father filed an Application – Contravention against the mother and on 6 December 2011 his application was dismissed.

8. On 9 February 2012 the father filed another Application for Final Orders seeking to set aside the 2007 parenting order.

9. An Amended Application for Final Orders was filed on 17 June 2015 deleting all reference to the parenting issue and replacing the orders sought with the following (as per original):

   2. That the Court make an order that the Respondent Mother be prosecuted for the Offences of Emotional and Psychological Child Abuse/Harm by unlawfully wilfully recklessly and knowingly implanting Parental Alienation on the children from August 2005 to date to succeed in all proceedings against the Father in Queensland and Federal Courts, to Contravene the Parenting Orders, and to destroy the present and future relationship between the children and their Father. (Federal/Cross-Vested Law/Jurisdiction).

   3. That the Court make an order under the Crimes Act 1914 (Cth) – Part III – Offences Relating to the Administration of Justice – Division 3 – Evidence and Witnesses – Section 35 – Giving false testimony and Family Law Rules 2004 – Chapter 15 – Evidence, that the Mother and her witnesses be prosecuted for knowingly and wilfully making false statement in evidence. (Federal Law).

   4. That the Court make an order under the Crimes Act 1914 (Cth) – Part II – Offences Relating to the Administration of Justice – Division 3 – Evidence and Witnesses – Section 36 – Fabricating evidence; Section 37 – Corruption of witnesses; Section 38 – Deceiving witnesses and Division 4 – Perverting the course of justice – Section 41 – Conspiracy to bring false accusation; Section 42 – Conspiracy to defeat justice; and Section 43 – Attempting to pervert justice, that the Mother and her witnesses be prosecuted. (Federal Law).

   5. That the Court make and order under the Criminal Code 1899 (Qld) Section 697 – Court may direct certain persons to be prosecuted for Perjury, to prosecute the Mother and her witnesses for Perjury and Other Offences Relating to the Administration of Justice pursuant to the Criminal Code 1899 (Qld). (Cross-Vested Law/Jurisdiction).

   6. That the Court make an order that the Offences Relating to the Administration of Justice (Commonwealth/Federal and Queensland (State) Criminal Laws), committed by the Mother and her witnesses, be transferred to the Criminal Jurisdiction of the Supreme Court of Queensland. (Cross-Vested Law/Jurisdiction).

   7. That the Court make an order that the Respondent Mother be prosecuted for Contempt of Court. (Family Law Act 1975 – Part XIIIB – Section 112AP).

   8. That the Court make an order that the Respondent Mother be prosecuted for Serious Contravention. (Family Law Act 1975 – Division 13A – Sections 70NFB(2)(e), 70NFG and Part XIIIA – Section 112A).

   9. That the Court make an order under the Family Law Act 1975 – Section 118, that all the Mother’s proceedings against the Father, be dismissed. (Federal Law).

   10. That the Court make and order under the Family Law Act 1975 – Section 102QB against the Mother for Vexatious Proceedings. (Federal Law).

10. When the matter came before the Court on 29 September 2017 it was noted that the father did not seek a parenting order and his Amended Application was dismissed save for paragraphs 9 and 10 which were set for hearing on 30 November 2017.

11. The father has filed 19 separate Applications in a Case in the period 11 April 2012 and 16 November 2017. All applications have been dismissed.

12. In addition, the father filed a Notice of Appeal on 16 August 2012 and prior to confirmation of it being deemed abandoned on 19 February 2014 the father filed 6 Applications in an Appeal, all of which were dismissed save for an extension of time being granted to file appeal books with which the father failed to comply.

13. The father filed a further Notice of Appeal on 1 April 2016 and prior to it being dismissed on 10 November 2017 the father filed 2 Applications in an Appeal which were dismissed.

14. There are two outstanding Notices of Appeal filed by the father on 18 October 2017 and 29 November 2017 respectively. The first appeal seeks to set aside the orders made on 29 September 2017 dismissing paragraphs 2 – 8 of the Amended Application for Final Orders filed 17 June 2015 (as set out above); dismissing various Applications in a Case and setting the matter down for a final hearing. The second appeal seeks to set aside the order made on 27 November 2017 which dismissed the father’s application for recusal and his application to appear by telephone at the final hearing on 30 November 2017.

15. Apart from the Application initiating proceedings filed in 2007 the mother has filed only one other application in the proceedings.

vexatious proceedings

1. Section 118 of the Act provides:

   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; and

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

2. Part XIB of the Act provides additional provisions empowering the Court to make a vexatious proceedings order which prohibits a person from commencing proceedings without prior leave of the Court.

3. Section 102Q of the Act defines vexatious proceedings as follows:

   "vexatious proceedings " includes:

   (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.

1. Section 4 of the Act defines proceedings as:-

   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.

2. Section 102 QB of the Act provides:

   Making vexatious proceedings orders

   (1)This section applies if a court exercising jurisdiction in proceedings under this Act is satisfied:

   (a)a person has frequently instituted or conducted vexatious proceedings in Australian courts or tribunals; or

   (b)a person, acting in concert with another person who is subject to a vexatious proceedings order or who is covered by paragraph (a), has instituted or conducted vexatious proceedings in an Australian court or tribunal.

   (2)The court may make any or all of the following orders:

   (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.

   Note: Examples of an order under paragraph (c) are an order directing that the person may only file documents by mail, an order to give security for costs and an order for costs.

   (3)The court may make a vexatious proceedings order on its own initiative or on the application of any of the following:

   (a)the Attorney-General of the Commonwealth or of a State or Territory;

   (b)the appropriate court official;

   (c)a person against whom another person has instituted or conducted vexatious proceedings;

   (d)a person who has a sufficient interest in the matter.

   (4)The court must not make a vexatious proceedings order in relation to a person without hearing the person or giving the person an opportunity of being heard.

   (5)An order made under paragraph (2)(a) or (b) is a final order.

   (6)For the purposes of subsection (1), the court may have regard to:

   (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.

3. It is apparent from the definition section that the 2012 amendments which introduced the Part XIB including the above sections (effective 11 June 2013) import an objective and subjective element to the determination.

4. The Full Court in Marsden & Winch[2] considered the term ‘vexatious’ in the context of an application to have a litigant declared vexatious pursuant to s 118. The Act has been amended since that decision and empowers the court to make a vexatious proceeding order which is defined in an inclusive and non-exhaustive manner as set out above.

   [2] (2013) FLC 93-560

5. In Cannon & Acres[3] Benjamin J considered the term ‘vexatious’ in light of the amendments to the Act and in so doing cited a helpful discussion by Perram J in Official Trustee in Bankruptcy & Gargan (No 2).[4] The matters discussed, while dealing with a different statute, nevertheless provide a level of guidance in considering whether an order as proposed should be made given that such an order would be a significant incursion on a litigant’s ability to commence proceedings as of right. 

   [3] [2014] FamCA 104; see also Pencious & Searle [2017] FamCAFC 210

   [4] [2009] FCA 398

   Principles relating to vexatious litigants

   2.A comprehensive explanation of what makes a proceeding vexatious is difficult to proffer for the boundary between the persistent and over-zealous on the one hand, and the vexatious on the other, may at times be indistinct. However, the following principles are, at least, well-established. 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.

   3.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.

   4.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.

   5.Fourthly, the qualities of vexation to which O 21 is addressed are to be found, as the terms of r 1(1) show, in the commencement by the litigant of proceedings which lack reasonable grounds and where the litigant’s institution of such proceedings may fairly be said to be both habitual and persistent.

   6.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.

   7.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.

   8.Seventhly, it is the related quality of repetition which underpins, in part, a need for the institution of the proceedings to deserve the appellations habitual and persistent. The litigant’s conduct will be habitual where the commencement of proceedings occurs as a matter of course when appropriate conditions for their commencement are present as was explained by Roden J in Attorney-General v Wentworth (1988) 14 NSWLR 481 at 492. That formulation may not wholly explain the litigant who commences proceedings on any occasion and without the presence of any conditions, whether appropriate or otherwise. In such cases, the idea of constant repetition driven by habit and symptomatic of an inability not to engage in the behaviour may be more useful. Persistence, on the other hand, generally suggests stubborn determination but, in the context of the vexatious, carries with it the capacity to endure failure beyond the point at which a rational person would abandon the field.

   9.Eighthly, each of these notions – the want of reasonable grounds, habitual institution and persistent 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.

   10.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).

   11.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.

   12.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.

1. In determining whether a person has frequently instituted or conducted vexatious proceedings in Australian courts, “both the quality of the vexatiousness of a proceeding, and the nature of the proceeding itself, inform the assessment of frequency” and frequency “is not to be assessed merely by an arithmetic calculation.”[5]

   [5] See Potier v Attorney General (NSW) (2015) 89 NSWLR 284 at [116]; Viavattene v Attorney General (NSW) [2015] NSWCA 44 at [49]

are the proceedings commenced by the mother vexatious or frivolous

1. As noted above the father applies for an order that “all the mother’s proceedings against the father be dismissed” pursuant to s 118 of the Act. There are no outstanding proceedings against the father other than an application for a vexatious proceedings order and an injunction.

2. There is nothing contained in the father’s affidavit filed 2 November 2017 that addresses his application. There is no evidence before me that the proceedings commenced by the mother are frivolous or vexatious and I will dismiss the father’s application.

do the facts of this case warrant the making of a vexatious proceedings order against either party?

The mother

1. There is no evidence that the mother has frequently instituted or conducted vexatious proceedings in Australian courts and I will dismiss the father’s application for a vexatious proceedings order against her.

The father

1. As noted above the father has filed an inordinate number of applications in this Court. He has been spectacularly unsuccessful. It is fair to observe, in my view, that most if not all of the applications were instituted or pursued without reasonable ground and in particular the father sought orders which the Court did not have jurisdiction to make. It is also fair to observe that many if not all of the applications were an abuse of process given the repetition in the applications made by the father e.g. applications for recusal; applications that the mother be prosecuted for perjury or other offences; applications that other parties be prosecuted for perjury or other offences; filing Notices of a Constitutional Matter without any basis whatsoever etc. The filing of such material has also had the consequence of delaying the proceedings. Further, the father has a history of making allegations of fraud and corruption without any evidentiary basis against persons other than the mother including the judiciary.[6]

   [6] see also father’s affidavit filed 2 November 2017 at [2]

2. It is noteworthy that the father was declared a vexatious litigant in another court in 2010 and that as long ago as 2006 the father brought proceedings in one Court seeking relief that the court did not have jurisdiction to grant. The father has persisted in doing so in this Court.

3. In an application for security for costs brought against the father in a court in 2009 it was noted that the father had brought 32 other proceedings in other courts.

4. In the application in 2010 in which the father was declared a vexatious litigant, it was noted that the father had commenced more than 24 proceedings since  2009. The defendants to a number of those proceedings had been the mother’s legal representatives. The father was convicted of stalking with violence in 2014 in a criminal court and sentenced to a term of imprisonment. The conviction related to a former lawyer of the mother’s.

5. In considering the father’s application for leave to commence an appeal against the order declaring him to be a vexatious litigant one Court concluded that the proposed appeal was vexatious.

conclusion

1. For the reasons identified above I find that the father has frequently instituted or conducted vexatious proceedings in Australian courts and I propose to make a vexatious proceedings order against him.

consequence of making a vexatious proceedings order

1. The consequence of making a vexatious proceedings order against the father will be to prohibit him from commencing proceedings against the mother or her legal representatives or former legal representatives under the Family Law Act 1975 (Cth) without the leave of the court under s 102QE. That section provides as follows:

   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.

injunction and security for costs

1. The mother also applies for an injunction restraining the father from serving her or her legal representatives with any application for leave to institute proceedings. However, the father is already prohibited from doing so pursuant to s 102QE(4) which provides:

   (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). …

2. In the event that the father does file an application for leave to institute proceedings the court at that time may consider whether to make an order for security for costs. It is premature to consider an application for security for costs at this time.

injunction to prevent breach of s 121 of the Act

1. In his affidavit filed 2 November 2017 the father has indicated an intention to publish information that would appear to be in breach of s 121 of the Act. That section creates an indictable offence punishable by a term of imprisonment of up to one year for any person who publishes by electronic means or otherwise disseminates to the public or a section of the public by any means, any account of any proceedings, or any part of any proceedings, under the Act that identifies:

   a)A party to the proceedings;

   b)A person who is related to, or associated with, a party to the proceedings or is, or is alleged to be, in any other way concerned in the matter to which the proceedings relate; or

   c)A witness in the proceedings.

2. The father will be on notice upon reading this judgment that if he carries out his threat he will be subject to prosecution and possible imprisonment. I do not propose to enjoin him from committing what is already an indictable offence.

summary

1. I propose to make a vexatious proceedings order against the father prohibiting him from instituting proceedings against the mother and/or her legal representatives (past or present) under the Act in any court exercising jurisdiction under the Act. All remaining applications will be dismissed.

I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Carew delivered on 22 December 2017.

Associate:

Date:  22 December 2017.