Yuen & Ainsworth (No 2)
[2023] FedCFamC1F 294
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Yuen & Ainsworth (No 2) [2023] FedCFamC1F 294
File number(s): BRC 170 of 2021 Judgment of: JARRETT J Date of judgment: 20 April 2023 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Application for vexatious proceedings order – Finding that the applicant has instituted vexatious proceedings on five occasions – Where the applicant resisted the making of a vexatious proceedings order in similar conduct to her previous vexatious proceedings – Consideration of principles of vexatious proceedings orders – Vexatious proceedings order made Legislation: Evidence Act 1995 (Cth) s 140
Family Law Act 1975 (Cth) ss 60CC, 102Q, 102QB
Vexatious Proceedings Act 2005 (Qld)
Vexatious Proceedings Act 2008 (NSW)
Cases cited: Ainsworth & Yuen (No 2) [2020] FCCA 2214
Ainsworth & Yuen (No 3) [2020] FCCA 3192
Aldridge v Keaton [2009] FamCAFC 229
Briginshaw v Briginshaw (1939) 60 CLR 336
Official Trustee in Bankruptcy v Gargan (No 2) [2009] FCA 398
Pencious v Searle [2017] FamCAFC 210
Potier v Attorney-General (NSW) (2015) 89 NSWLR 284
Rice & Asplund [1978] FamCA 84
Trahn & Long (No 2) [2008] FamCAFC 194
Yuen & Ainsworth [2021] FamCAFC 86
Yuen & Ainsworth [2022] FedCFamC1F 1025
Division: Division 1 First Instance Number of paragraphs: 105 Date of last submission/s: 9 February 2023 Date of hearing: 20 December 2022 Place: Brisbane Solicitor for the Applicant: Litigant in person (by written submission) Solicitor for the Respondent: Litigant in person (by written submission) ORDERS
BRC 170 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS YUEN
Applicant
AND: MR AINSWORTH
Respondent
order made by:
JARRETT J
DATE OF ORDER:
20 April 2023
THE COURT ORDERS THAT:
1.Paragraph 2 of the response to an initiating application filed on 3 February, 2021 be dismissed.
2.Pursuant to s 102QB(2) of the Family Law Act 1975 (Cth) Ms Yuen is prohibited from instituting proceedings against Mr Ainsworth under the Family Law Act 1975 (Cth) in a court having jurisdiction under that Act.
3.Otherwise all outstanding applications are dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Yuen & Ainsworth has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JARRETT J:
On 20 December, 2022 I delivered judgment in these proceedings dismissing Ms Yuen’s application filed on 7 January, 2021 to reopen certain final parenting orders: Yuen & Ainsworth [2022] FedCFamC1F 1025. Consequent upon dismissing the application, I also dismissed an application in a proceeding filed by her on 27 May, 2021.
I also dismissed Mr Ainsworth’s response to final orders filed 3 February, 2021 save for the relief sought in paragraph 2 of that response. I dismissed his response to an application in a proceeding filed 3 July, 2022 save for the relief sought in paragraph 4 of that document. I invited the parties to file written submissions in relation to the relief sought in those paragraphs.
Paragraph 2 of the response filed 3 February, 2021 seeks that “the mother be prohibited from filing any further applications until the appeal is heard”. That is a reference to an appeal filed by Ms Yuen against the final parenting orders made on 16 July, 2020. That appeal was heard and dismissed on 7 June, 2021. Accordingly, it is unnecessary for me to consider that relief and I dismiss paragraph 2 of the response filed 3 February, 2021.
The balance of this judgment will deal with the relief sought in paragraph 4 of the response filed 3 July, 2021 which seeks that “the mother be declared a vexatious litigant and be prohibited from filing any further applications without leave of the court”.
There is no power afforded to me under the Family Law Act 1975 (Cth) to declare someone a vexatious litigant. However, I have treated Mr Ainsworth’s application to be one for a vexatious proceedings order pursuant to s 102QB of the Family Law Act 1975 (Cth) and have dealt with his application accordingly.
THE APPLICABLE LEGISLATION
In their written submissions, both Ms Yuen and Mr Ainsworth directed me to s 118 of the Family Law Act 1975 (Cth). Section 118 of the Act was repealed in 2018.
Mr Ainsworth also directed me to the Vexatious Proceedings Act 2005 (Qld). That is Queensland legislation. The Federal Circuit and Family Court of Australia (Division 1) does not have jurisdiction or power to make orders under that legislation.
Finally, Mr Ainsworth referred me to r 11.04 of the Family Law Rules 2004 and r 13.11 of the Federal Circuit Court Rules 2001. Neither of these rules remain in force. The applicable rules of this court are the Federal Circuit and Family Court of Australia (Family Law) Rules 2021, though I have not been directed to any provision within those rules relevant to the relief sought.
Notwithstanding these difficulties, I have approached the present application as seeking relief pursuant to s 102QB of the Family Law Act 1975 (Cth). That section provides as follows:
102QBMaking 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.
Accordingly, by a combination of s 102QB(1)(a) and ss 102QB(2)(b) or 102QB(2)(c), if I find that Ms Yuen has frequently instituted or conducted vexatious proceedings, I have power to make an order prohibiting her from instituting proceedings or proceedings of a particular type in a court having jurisdiction under the Act.
Section 102Q defines vexatious proceedings to 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.
It will be noticed that each part of the definition of the phrase vexatious proceeding is concerned with proceedings in a court or a tribunal. That is not surprising given the definition of the word proceedings set out in s 4 of the Act. Thus, notwithstanding the inclusive nature of the definition, the relevant inquiry for the purposes of the definition of vexatious proceedings concerns proceedings in a court or a tribunal.
MS YUEN'S PROCEEDINGS
In his written submissions, Mr Ainsworth directed me to 13 courses of action undertaken by Ms Yuen which he alleges to be vexatious in nature. I say courses of action because, as detailed below, some of Mr Ainsworth’s complaints cannot be properly characterised as proceedings. The 13 courses of action are:
(1)Ms Yuen’s conduct more generally in the application for final orders filed 3 May, 2016 in the Federal Circuit Court of Australia;
(2)an application for a domestic violence order filed in early, 2016 in an unspecified Magistrates Court of Queensland;
(3)an application in a case filed on 26 October, 2017 in the proceedings then before the Federal Circuit Court of Australia;
(4)a complaint filed by her about Mr Ainsworth with V Organisation in late 2018;
(5)an application in a case filed on 24 March, 2020 in the proceedings then before the Federal Circuit Court of Australia;
(6)multiple complaints made to the Queensland police in 2020;
(7)an application to the Administrative Appeals Tribunal made mid-2020;
(8)an appeal filed on 13 August, 2020 against the final orders made in the Federal Circuit Court of Australia on 16 July, 2020;
(9)an application in a case filed 25 September, 2020 seeking a stay of the final orders made by the Federal Circuit Court of Australia;
(10)an appeal filed on 12 October, 2020 against a refusal to order a stay of the final orders pronounced on 16 July, 2020;
(11)an application for final orders filed 7 January, 2021 in the Family Court of Australia;
(12)an application in a proceeding filed 27 May, 2022 in the Federal Circuit and Family Court of Australia (Division 1);
(13)an application in a proceeding filed 28 June, 2022 in the Federal Circuit and Family Court of Australia (Division 2).
Items 4 and 6 can immediately be discounted because they do not meet the description of proceedings or vexatious proceedings for the purposes of the Act.
Items 11 and 12 above were heard by me and finalised by the orders of 20 December, 2022.
Mr Ainsworth did not take me through the items in the above list separately in any detail, nor identify which part of the definition of vexatious proceedings in s 102Q he alleged was engaged by each item.
Nor did Mr Ainsworth refer me to any particular affidavit material to which I should have regard when determining this application. Doing the best I can, I have had regard to the following material:
(1)response to final orders filed in the Federal Circuit Court of Australia on 3 June, 2016;
(2)orders of the Federal Circuit Court of Australia dated 7 December, 2016;
(3)application in a case filed in the Federal Circuit Court of Australia on 26 October, 2017;
(4)orders of the Federal Circuit Court of Australia dated 5 December, 2017;
(5)reasons for judgment of the Federal Circuit Court of Australia dated 15 November, 2018;
(6)reasons for judgment of the Federal Circuit Court of Australia dated 29 April, 2020;
(7)reasons for judgment of the Federal Circuit Court of Australia dated 16 July, 2020: Ainsworth & Yuen (No 2) [2020] FCCA 2214;
(8)reasons for judgment of the Federal Circuit Court of Australia dated 7 October, 2020: Ainsworth & Yuen(No 3) [2020] FCCA 3192;
(9)Notice of Appeal lodged in the Family Court of Australia on 12 October, 2020;
(10)reasons for judgment of the Full Court of the Family Court of Australia dated 7 June, 2021: Yuen & Ainsworth [2021] FamCAFC 86;
(11)reasons for judgment of the Federal Circuit and Family Court of Australia (Division 1): Yuen & Ainsworth [2022] FedCFamC1F 1025;
(12)Mr Ainsworth’s submissions dated 20 January, 2023;
(13)Ms Yuen’s submissions dated 9 February, 2023.
Ms Yuen filed her submissions on 9 February, 2023. In those submissions, she sought leave to “read and file, and give oral evidence, if necessary, and produce material to be put before the court as set out in my filed affidavit with this submission”. On 11 February, 2023 she filed an affidavit. No leave was given for filing of that affidavit. I have not had regard to it for a number of reasons.
Firstly, no proper application was made for leave to rely upon the affidavit and Mr Ainsworth has not been afforded the opportunity to object to its admission. Secondly, her submissions did not disclose any reason that she should be allowed to rely on the affidavit. Thirdly, the affidavit contains a myriad of annexures comprised of transcripts, reasons for judgment, orders and other documents. Many of these documents contain obvious errors on their face or appear to have been edited. There is no proper explanation by Ms Yuen as to which documents have been edited or why they have been edited. I can therefore have no faith in the accuracy of the documents. Finally, to the extent that Ms Yuen’s affidavit refers to transcripts, reasons for judgment or court orders, I have already indicated that I have had regard to them.
Notwithstanding the inclusive nature of the definition of vexatious proceedings in the Act, Mr Ainsworth does not suggest that I should measure the matters identified by him against anything other than that definition. I have confined my consideration of his argument to the matters set out in that inclusive definition. I will therefore traverse the items set out above (save for items 4 and 6) seriatim to determine whether they meet the legislative criteria for vexatious proceedings.
Ms Yuen’s conduct in the final orders application
The final orders application was commenced by Mr Ainsworth on 3 May, 2016. It was finalised following a trial on 16 July, 2020. On that day the court made final orders and the presiding judge delivered an ex tempore judgment.
Section 102QB(1)(a) of the Act refers to a person who institutes or conducts proceedings. These proceedings were not instituted by Ms Yuen, but by her response to the initiating application filed on 3 June, 2016, Ms Yuen pursued relief under the Family Law Act 1975 (Cth). She did not merely seek that the initiating application be dismissed. Her response was in the nature of a cross-application that initiated her approach to the court for relief under the Act. In that way, it can be said, I think, that Ms Yuen instituted proceedings for the purposes of the definition of vexatious proceedings.
Mr Ainsworth’s main contention is that Ms Yuen made allegations, unsupported by evidence, that he had subjected their child (who was the subject of the proceedings) to “abuse” and made allegations that he had perpetrated domestic and family violence upon her, to which their child was exposed. He argues that this was the conduct of proceedings in a way which was vexatious and an abuse of the process of the court.
The court’s reasons given on 16 July, 2020 echo this sentiment. In Ainsworth & Yuen (No 2) [2020] FCCA 2214 the trial judge said:
85. The evidence was presented in such a way that all that is before the court are allegations because I could not possibly make a finding grounded on evidence, which is what the requirement is, based upon the allegations.
86. Sometimes there is other supporting material which assists the court – what is called corroborative evidence – but none of that is here.
This type of approach to advancing a case in this jurisdiction is not uncommon. Frequently parties, even those represented by legal practitioners, make serious allegations with no particularisation or corroboration. Little attention is paid to the distinction between an allegation and the evidence that proves, or tends to prove, the facts upon which the allegation is based. Even less regard is paid to s 140 of the Evidence Act 1995 (Cth) and Briginshaw v Briginshaw (1939) 60 CLR 336.
Whilst it was damaging to Ms Yuen’s case that some of her serious allegations could not be supported by any evidence, that was not so in respect of all of her allegations. In his judgment, the trial judge noted that Ms Yuen’s allegations concerning Mr Ainsworth’s alcohol misuse were supported by the evidence and a cause for concern:
116. Alcohol consumption is an issue – it is a live issue.
117. The father has admitted that he has taken alcohol to excess.
118. The mother, quite rightly, is concerned about that.
119. The court would be concerned about that.
Ms Yuen’s fear of Mr Ainsworth’s relapse into alcohol abuse was, at the time of final hearing, identified as a risk. That risk was based upon uncontroversial facts about Mr Ainsworth’s past alcohol consumption. There was some factual basis for the risk that Ms Yuen was alleging and that risk attracted the presiding judge’s attention.
On the material and argument before me I am not satisfied that Ms Yuen’s proceeding (constituted by her response to Mr Ainsworth’s initiating application) was a proceeding that was:
(a)an abuse of the process of a court or tribunal;
(b)instituted to harass or annoy, to cause delay or detriment, or for another wrongful purpose;
(c)instituted or pursued without some reasonable ground; or
(d)conducted in a way so as to harass or annoy, cause delay or detriment, or achieve another wrongful purpose.
Ms Yuen did not conduct her response to the initiating application commenced by Mr Ainsworth in a manner that engages the definition of vexatious proceedings in s 102Q(1) of the Act. Subsection 102QB(1)(a) of the Act is not engaged. Although some aspects of her case were without any evidentiary foundation as it turned out, other aspects of her case were supported by evidence.
Ms Yuen’s domestic violence order application filed 17 March, 2016
Mr Ainsworth claims this application was dismissed on 30 November, 2016. He has not directed me to any evidence that the application was dismissed or the reasons for its dismissal.
Ms Yuen’s contention is that the domestic violence application was dismissed because the parties were separated and the violence was not continuing. Like Mr Ainsworth, she did not direct me to any evidence of that claim.
In the absence of any evidence about this application, I cannot make the requisite findings so as to conclude that s 102Q and 102QB(1)(a) are engaged. The mere fact that it was dismissed, without more, is insufficient to establish that it was a proceeding instituted in a court to harass or annoy Mr Ainsworth, to cause delay or detriment, or was for some wrongful purpose. I cannot make a determination about whether the application was commenced or pursued without reasonable ground.
The application in a case filed 26 October, 2017
In her response filed on 3 June, 2016 to Mr Ainsworth’s initiating application, Ms Yuen sought some interim orders in the following terms (errors in the original):
9. The Court order that the other be at liberty to return to [Country P] for the purpose of arranging her affairs for permanent residence in Australia with the child, for a period of one month; the Applicant to sign all papers necessary for the mother to obtain passport for the child and in the event that the Applicant refuses to do so then a Registrar of the Family Court of Australia be at liberty to sign all such necessary papers.
10. The mother undertakes to return the child to Austrlia and to keep the Applicant informed of all travel arrangments regarding her and the child.an order
Ms Yuen’s claim for that relief was determined by the docket judge on 7 December, 2016. The application was refused and orders were made that the parties’ child be restrained from leaving the Commonwealth of Australia.
Ms Yuen filed an application in a case in the Federal Circuit Court of Australia on 26 October, 2017. In that application she sought the following orders:
2. That the mother of the child [X] be permitted to take the child to [Country P] for visitation and other purposes for a period of not more than 35 days.
3. That the father of the child [X] signs all documentation that is required to permit the child to facilitate the said travel for the child.
4. That the child [X] be removed from the list of children not permitted to leave Australia.
Mr Ainsworth’s contention is that this application sought to limit the child’s time with him and presumably, was for that reason vexatious or an abuse of process. It will be observed, however, that the application seeks orders for Ms Yuen and the parties’ child to travel to Country P. The practical effect of that travel might have been to make it impossible for the parties’ child to spend time with Mr Ainsworth during the relevant period, but that does not seem to have been the import of the application. She sought no other orders that would have discharged, varied or suspended the parenting arrangements that were otherwise in place.
On 5 December, 2017 the same judge that dealt with the earlier interim application for overseas travel, heard and determined this application in a case. No reasons for that decision are available. The application in a case filed by Ms Yuen was dismissed. An order was made restraining her from filing any further applications about overseas travel without first obtaining leave of the court. Two other orders were made that suggest that more was agitated at the interim hearing than the question of overseas travel. There was an order requiring Mr Ainsworth to ensure that the parties’ child “was appropriately clothed when returned to the care of the mother”. There was an order that “the Orders made 17 August 2017 continue to operate”.
Although the application in a case filed 26 October, 2017 sought to agitate issues of overseas travel that had been the subject of an earlier unsuccessful application, it is by no means inappropriate to make a second application for relief like an overseas travel order. An order was necessary because absent the consent of Mr Ainsworth, Ms Yuen could not remove their child from Australia without an order of the court: s 65Y of the Act. The evidence relied upon by Ms Yuen in each of the applications is not before me and so it is impossible to determine if the basis for each application was the same. If it was, then arguably, the second application might be seen as vexatious. But I cannot make that finding. The absence of reasons from the judge who determined the application means that I cannot know the basis for the dismissal of the application. Although certain inferences might be drawn from the fact that a restraint was cast upon Ms Yuen from bringing any further applications for overseas travel without leave, there is no explanation about why the restraint was thought to be necessary.
I am not satisfied that the application in a case filed on 26 October, 2017 was a vexatious proceeding as defined by s 102Q(1) of the Act.
The application in a case filed 24 March, 2020
Ms Yuen filed an application in a case in the Federal Circuit Court of Australia following the outbreak of the COVID-19 pandemic seeking to suspend the child’s time with Mr Ainsworth. The reason she disclosed for doing so was that Mr Ainsworth’s workplace presented an elevated risk of COVID-19. At the same time, Ms Yuen was also working in a high-risk workplace.
An interim hearing was conducted on 14 April, 2020. The presiding judge delivered reasons for his decision on the application that were reduced to writing. I have read them. His Honour’s determination, made at the very early stages of the pandemic, recited the arguments from each party and drew on the information that was generally available such as directives from the Queensland Department of Health. He also referred to the approach taken by a judge in Canada. The reasons reveal that arriving at his conclusion to dismiss Ms Yuen’s application was not straightforward, but was, it seems, a finely balanced determination.
Given the circumstances extant at the time of Ms Yuen’s application, including the significant uncertainty about the spread of COVID-19 and its consequences, the uncertainty attending the freedom of movement enjoyed by the general population averted to by the presiding judge and the possible risks found by the judge to exist by reason of the work undertaken by both parties, I do not think that the application was a vexatious proceeding. In the extant circumstances, I do not consider that I should conclude that it was instituted without reasonable grounds. It is of some significance I think, that the statement issued by the Chief Judge of the Federal Circuit Court of Australia on 26 March, 2020 was issued after Ms Yuen had filed her application.
Ms Yuen’s application to the Administrative Appeals Tribunal in mid-2020
Mr Ainsworth claims that Ms Yuen made an application to the Administrative Appeals Tribunal in mid-2020 which was dismissed. He does not tell me when it was dismissed. He does not direct me to any evidence that it was dismissed or the reason for that dismissal. I assume that it related to child support.
Ms Yuen’s response to this allegation is that it was “outside the Family Law Jurisdiction”. However, whilst that might be so, the text of the definition of vexatious proceeding in s 102Q of the Act is not confined to proceedings which are only “family law proceedings”. I may find that an application to a tribunal was a vexatious proceeding.
But I decline to make such a finding here as there is no evidence to support Mr Ainsworth’s claim that those proceedings were vexatious in the relevant sense.
Ms Yuen’s appeal against the final orders lodged 13 August, 2020
Final orders were made by the Federal Circuit Court of Australia on 16 July, 2020. Ms Yuen appealed those orders on 13 August, 2020. The appeal was heard by the Full Court of the Family Court on 10 May, 2021 and judgment was delivered on 7 June, 2021: Yuen & Ainsworth [2021] FamCAFC 86.
Ms Yuen’s amended Notice of Appeal contained 16 separate grounds of appeal, alleging apprehended bias, failing to admit material which had in fact already been admitted into evidence, failure to deliver adequate reasons, error in applying the Act and various other matters.
Two of the grounds were explicitly abandoned at the hearing. No merit was found in any of the grounds. I will briefly touch on some of them.
Ground 2 alleged that the trial judge erred in applying the Act, but Ms Yuen did not identify any error. Ground 4 alleged that the trial judge erred in his understanding of the evidence, but the ground was not expanded upon to particularise that error. Ground 9 alleged that the trial judge failed to consider various provisions of s 60CC(3) of the Act but no submissions were made to support that ground.
The appeal was ultimately dismissed. The Full Court found Ms Yuen had been wholly unsuccessful in her appeal and she was ordered to pay Mr Ainsworth’s costs.
It is abundantly clear from the judgment of the Full Court that the appeal was instituted without reasonable grounds. I so find. I also find, on the basis of numerous grounds of appeal being pursued without submissions or evidence to support them, that the proceedings were conducted in a way so as to harass or annoy Mr Ainsworth.
Ms Yuen contended that she had a right to appeal and, by implication at least, if she was exercising that right she could not be seen as vexatious. But that does not follow. Whilst it is true that parties have a right to appeal, as they do a right to file an application, that right is not unlimited. Parties are not entitled to commence proceedings (by way of appeal or otherwise) without reasonable grounds. If that were not the case, provisions like s 102QB(1) of the Act would have no work to do.
I find that the appeal lodged 13 August, 2020 was a vexatious proceeding within definition (c) of s 102Q(1).
The application in a case filed 25 September, 2020
Ms Yuen filed an application in a case in the Federal Circuit Court of Australia on 25 September, 2020 following the final orders made in July, 2020. That application sought a stay of the final orders pending the appeal.
The application was heard on 7 October, 2020 and reasons for judgment were delivered ex tempore: Ainsworth v Yuen (No 3) [2020] FCCA 3192.
The judge was not satisfied that the appeal was strongly based or that any new risks had arisen for the child since the final orders had been delivered. He dismissed the stay application. His Honour questioned Ms Yuen’s bona fides as she had waited over five weeks after filing her appeal to file her stay application.
His Honour made some further remarks that are of note:
72.Again, I stress I am not given any proper evidence and I am given hearsay evidence of what the mother says is the case.
73.It seems to me that it is a way in which the mother is attempting to get around the issues going to the appeal to get a stay on the basis that the child may be at risk, which I cannot see.
74. It is improper to do it that way.
…
109. Now it may be said the issues of the [medical condition] just became available to her.
110.That is not before the court because there is no evidence of why she took 18-months to get some medical advice on this […] issue.
111.There is no evidence as to why she did not tell the father she was now getting such advice, which I think is very important.
112.All parents are concerned if their children have to undergo operations and both parties [work in the health sector], so they would know, no doubt, that there is always a risk for people undergoing operations and perhaps more so with a child.
113. The mother simply did not tell the father in any reasonable manner.
114. She just presented him with what I take to be a fait accompli.
115. That is the way her evidence [view] is cast without any supporting evidence.
Ms Yuen’s submissions make two comments about the stay application. Firstly, she says that the stay application is “part of the proceeding” connected with her right to appeal. For reasons I have already given, that argument does not assist her.
Secondly, Ms Yuen tries to justify the delay in making the stay application because she says she was raising funds and seeking legal advice. I have not been directed to any evidence to support that claim. Even so, it does nothing to remedy the fact that the application was unsupported by evidence and was without reasonable grounds.
I find that the application for a stay was instituted without reasonable grounds and was an abuse of process by attempting to circumvent the appeal issues by alleging a new risk to the child. I find that it was a vexatious proceeding as defined in (a) and (c) of s 102Q(1) of the Act.
Appeal against the refusal to grant a stay
On 12 October, 2020 Ms Yuen filed an application for leave to appeal and a Notice of Appeal in the Family Court of Australia against the orders of 7 October, 2020 dismissing her stay application.
She discontinued the appeal on 20 December, 2020. I therefore do not have the benefit of a judgment on the grounds of appeal.
The Notice of Appeal listed five “facts relied on” in support of an application for leave to appeal:
1.The learned trial judge found that the test to be applied was whether there was a prospect of success in the appeal, when the test should be whether there were grounds of appeal which could be argued.
2.The ICL said there were no grounds of appeal and failed to make the assessment on the correct test.
3.The ICL should have remained neutral in the matter in the best interest of the child.
4.[Ms Yuen] reserves the right to amend the facts on which she relies until receipt of the Reasons for Judgement.
5.The learned judge erred in not finding the father refusing to allow an operation on the child was contrary to s60CC(2) likely to cause harm to the child.
The Notice of Appeal listed six grounds of appeal (errors in the original):
1.The learned judge erred in law and fact in dismissing the stay application.
2.The learned judge erred in applying the correct test in dismising [sic] the application.
3.The learned judge erred in failing to find that the best interst [sic] of the child was not applied where the father refused to consent to an operation for a [medical condition] as recommended by the surgeons.
4.The learned trial judge erred in accepting the ICL posion [sic] that there were no grounds of appeal.
5.The learned judge erred in failing to find the father refusing to consent to an operation for the child as recommended by 2 surgeons was essential to the mother having sole parental responsibility for the child.
5.[sic] That the learned trial judge erred in reserving cost for the ICL.
The grounds of appeal and the “facts relied on” are substantially similar so I will deal with them together.
The first set of appeal grounds relates to the approach adopted by the trial judge in dismissing the stay application. Ms Yuen contends the trial judge applied a test of whether there were reasonable prospects of success in the appeal when the correct test to be applied was whether there were any arguable grounds of appeal.
The principles applying to applications for a stay of final orders pending appeal were discussed by the Full Court of the Family Court in Trahn & Long (No 2) [2008] FamCAFC 194. One of the principles enunciated by the Full Court was that there should be “some preliminary assessment of the strength of the proposed appeal – whether the appellant has an arguable case”. This is but one of the principles among many others which the trial judge discussed in the course of his Honour’s judgment.
Just what Ms Yuen asserts is the difference between having an arguable ground of appeal and having reasonable prospects of success is not clear and is not illuminated further by her Notice of Appeal.
In any event, the trial judge did not apply a test of whether Ms Yuen had reasonable prospects of success. His Honour correctly cited the applicable principle as being whether the appellant has an arguable case, and went on to say:
16. I will briefly try and make an assessment of the strengths of the case.
His Honour continued on to make a preliminary assessment of the strengths of Ms Yuen’s case as was appropriate. There was no reasonable basis for this ground of Ms Yuen’s appeal.
The second “ground” of appeal is that the independent children’s lawyer should have remained neutral and that the trial judge erred in adopting the independent children’s lawyer’s position. But, the independent children’s lawyer was entitled to hold and express a position. There was no obligation to remain neutral at the hearing of the stay application. Given that one of the factors to be considered on such an application is the welfare of the child or children concerned (Aldridge & Keaton [2009] FamCAFC 106; Trahn & Long (No 2) [2008] FamCAFC 194), and taking into account the obligations cast upon an independent children’s lawyer by s 68LA(2) of the Act, one might reasonably expect an independent children’s lawyer to have a position on the application which was other than neutral.
Further, his Honour did not “adopt” the position of the independent children’s lawyer, but considered the case in detail and concluded that discretion should not be exercised to grant a stay.
The last “ground” of appeal is that the trial judge erred in not finding that by Mr Ainsworth refusing to consent to the child’s operation there was likely to be harm to her or, alternatively an order for sole parental responsibility was justified. His Honour carefully considered this issue, concluding both that Ms Yuen had presented insufficient evidence to support her assertion and that Mr Ainsworth had adequately explained his position in relation to the operation such that no harm was likely to befall the child. Ms Yuen has not identified any particular error with his Honour’s decision in this respect.
In my view, the Notice of Appeal did not advance any proper basis for the appeal. The proceeding was instituted without reasonable grounds and I find that it constituted a vexatious proceeding within definition (c) of s 102Q of the Act.
Initiating application filed 7 January, 2021
This application was filed by Ms Yuen in the Family Court of Australia on 7 January, 2021 seeking to re-open the parenting proceedings. Mr Ainsworth sought the summary dismissal of the application relying upon Rice v Asplund [1978] FamCA 84. I heard the application on 20 October, 2022 and delivered judgment on 20 December, 2022 after it was transferred to this court on 18 October, 2021: Yuen & Ainsworth [2022] FedCFamC1F 1025. I summarily dismissed Ms Yuen’s application.
Ms Yuen made several allegations of a change in circumstances. I found that all but one of those “changes” were circumstances that had existed at the time the Federal Circuit Court of Australia made final orders in 2020. The final issue, the child developing a medical condition, was a change in circumstances but not sufficient to warrant re-opening the parenting proceedings. Of that I said:
80 Not all changes bear the requisite quality that demands a fresh inquiry into the welfare of a child or children already the subject of a final parenting order. This is such a change. It is not, in my view, of such significance that it demands a fresh inquiry into [X’s] welfare. It is the type of change that is wrought by the passage of time and is part of ordinary human experience: King & Finneran [2001] FamCA 344 at [49]. Children become sick or unwell. That is to be expected. That [X] has developed a [medical condition] about which the parents cannot at this point agree does not signify a change in circumstances of the relevant quality. The applicant seeks a wholesale revision of the orders.
Whilst it does not necessarily follow that the proceedings were instituted without reasonable grounds because Ms Yuen’s argument about the medical condition failed, in this case I think it does. Even though questions of degree and judgment are involved and no doubt Ms Yuen thought that the medical issue and how that was handled by the parties was significant, it cannot be said that there were reasonable grounds for commencing a fresh application so as to revisit all of the orders that had been made in 2020. At most, all that was required was an application for an order that would resolve the impasse reached by the parties over the medical issue.
Moreover, the inclusion of all of the issues identified by Ms Yuen in this application that had been the subject of evidence and determination in the 2020 trial demonstrates that the fresh initiating application was nothing more than an attempt to cavil with the 2020 orders once more. The inclusion of all of those matters and the seeking of wholesale revisions to the orders that had been made in 2020 establishes that the proceedings were commenced so as to seek to overturn the 2020 final orders – something that was not able to be accomplished on the unsuccessful appeal. To initiate the proceedings for that purpose was an abuse of the process of the court. It was an attempt to re-litigate issues already decided by the trial judge in the final orders application.
I find that the initiating application filed 7 January, 2021 was a vexatious proceeding as defined in (c) of s 102Q(1) of the Act.
Application in a proceeding filed 27 May, 2022
Ms Yuen filed an application in a proceeding in the Federal Circuit and Family Court of Australia (Division 1) on 27 May, 2022 seeking that Mr Ainsworth attend upon a psychiatrist. There were no reasonable grounds for the application.
There was no basis in the evidence relied upon by Ms Yuen on that application to support the orders that she sought. I am satisfied that this proceeding was a vexatious proceeding as defined in (c) of s 102Q(1) of the Act.
Application in a proceeding filed 28 June, 2022
Whilst the proceedings for final relief that were dealt with by me in December, 2022 were pending, there were at least five contravention applications filed in the Federal Circuit and Family Court of Australia (Division 2), three by Mr Ainsworth and two by Ms Yuen. In the context of those applications, in June, 2018, Ms Yuen applied for the judge before whom the applications (or some of them) were listed for hearing to disqualify himself. It was the same judge who had made the 2020 final orders. The judge dismissed this application on 21 October, 2022.
The basis for the application was that Ms Yuen was suffering post-traumatic stress disorder caused by the trial judge. Just what happened to this application is not revealed by the evidence before me and I can make no findings relating to this application.
IS THE DISCRETION ENLIVENED?
There is a depth of case law concerning provisions analogous to s 102QB in other jurisdictions.
In Potier v Attorney-General (NSW) (2015) 89 NSWLR 284, Leeming JA analysed the operative term “frequently” which enlivens the power to make a vexatious proceedings order under the Vexatious Proceedings Act 2008 (NSW):
114.The power to make an order under the Vexatious Proceedings Act is conditioned upon a court being satisfied that the person has “frequently” instituted or conducted vexatious proceedings in Australia. The meaning of a word like “frequently” turns very much on its context; that is no different from many other protean words (such as “adversely affect” and “mistake”: cf Independent Commission Against Corruption v Cunneen; [2015] HCA 14 at [2] and [57] and CTM v R [2008] HCA 25; 236 CLR 440 at [7]). It is not possible to articulate a precise test. However, the following two matters relevant to its construction for the purposes of this appeal may be noted. Each supports the conclusion that “frequently” is a relatively low threshold.
115.First, the change in language from the predecessor provision (s 84 of the Supreme Court Act) of “habitually and persistently” was deliberate, and plainly lowered the threshold condition.
116.Secondly, there are vexatious proceedings and vexatious proceedings. It is one thing to file urgent appeals or applications for judicial review which cause substantial disruption to courts and other litigants and participants in the legal system (for example, the adjournment of a trial), or to make serious allegations of fraud unfounded in the evidence. It is quite different to encounter some poorly known legal doctrine which denies reasonable grounds to the proceedings or renders them technically an abuse of process, or to file a series of applications for the annulment of decisions of magistrates (I have in mind the nine applications for annulment made by Mr Viavattene all listed and determined on the same day: see Viavattene v Attorney General (NSW) [2015] NSWCA 44 at [70]). That is to say, both the quality of the vexatiousness of a proceeding, and the nature of the proceeding itself, inform the assessment of frequency.
117.I can readily envisage circumstances where a litigant commences only a handful of large proceedings, making serious allegations without any proper basis, but which occupy a significant amount of time and resources of parties and the courts, which could satisfy the statutory test of “frequently”. This illustrates the fact that “[t]he issue posed by the statutory term “frequently” is not to be assessed merely by an arithmetic calculation”: Viavattene at [49].
118.Each of those considerations favour “frequently” being a relatively low threshold.
119.The parties exchanged submissions on whether the proportion of proceedings instituted by a person being found to be vexatious was relevant to whether the threshold condition is satisfied. I do not think that it is. The statute requires the Court to be satisfied that a person has instituted or conducted vexatious proceedings frequently; whether the proportion of all proceedings instituted or conducted by the person which are vexatious is high or low does not bear upon that question. By the same token, suppose the question is whether a traveller will frequently encounter rabid dogs in a particular area. The answer does not turn on how many non-rabid dogs the traveller is likely to encounter in the area.
120.That said, the proportion of proceedings which are vexatious is highly relevant to the exercise of discretion to make an order, if the threshold condition is satisfied. For an order may bear upon all proceedings instituted or conducted by a person, and it will be essential for the Court to bear in mind its operation on existing and likely future proceedings, particularly those which are not vexatious.
Potier was cited with approval by the Full Court of the Family Court: Pencious v Searle [2017] FamCAFC 210, [74]. The bar set by the word frequently in the phrase frequently instituted or conducted vexatious proceedings in s 102QB(1)(a) is low.
In this case, I have found that Ms Yuen instituted vexatious proceedings on five occasions, all of which were within the last three years. Has she done so frequently?
I consider that she has. The applications that I have recounted above (and in respect of which I have made a finding of vexatiousness) are within a relatively confined space of time and all concern the same general subject matter. They represent, in my view, a refusal by Ms Yuen to accept the final orders that were made in 2020. I am satisfied, and I find, that Ms Yuen has frequently instituted vexatious proceedings and that s 102QB(1)(a) of the Act is engaged. Section 102QB therefore applies and the discretion provided for in s 102QB(2) is enlivened.
HOW SHOULD THE DISCRETION BE EXERCISED?
On the face of things, Mr Ainsworth is entitled to the relief that he seeks. Ms Yuen’s main argument advanced in her submissions is that she should not be made a vexatious litigant because it is Mr Ainsworth who is vexatious. This argument does not have merit. Even if her allegation that Mr Ainsworth is vexatious was correct, it does not follow that an order should not be made against Ms Yuen.
In any event, I am not satisfied on the material before me that Mr Ainsworth has frequently instituted or conducted vexatious proceedings. What the record demonstrates is a series of contravention applications by him in an attempt to have Ms Yuen comply with the terms of the final 2020 parenting orders.
In Official Trustee in Bankruptcy v Gargan (No 2) [2009] FCA 398, Perram J outlined general principles applying to applications for vexatious proceedings orders as they might be made in the Federal Court of Australia:
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.
The Full Court approved those principles in Pencious.
It is prudent to make several comments on this case in light of these principles.
Firstly, whilst I did not find that Ms Yuen’s complaints to V Organisation were vexatious proceedings, they nonetheless provide context to, as the presiding judge in the parties’ final hearing in 2020 put it: the campaign by Ms Yuen against Mr Ainsworth. It is abundantly clear that both parties in this case have allowed their emotions to dictate the conduct of their respective cases, leading to fruitless and spiteful litigation.
Secondly, Perram J’s comment about a failure or refusal to understand the principles of finality of litigation rings true. Since the final orders of 2020, Ms Yuen has filed a stay application, two appeals, a final orders application and an application in a proceeding all of which I found to be vexatious. In all of those applications she sought to relitigate issues that had already been dealt with at the 2020 trial.
There are two things in Ms Yuen’s favour against making a vexatious proceedings order. The first is that she, on her submissions upon prompting from the Appeal Registrar, withdrew her Notice of Appeal against the refusal to grant a stay application. The second is that she has not, or not yet, appealed against the orders of 20 December, 2022 dismissing her most recent initiating application. While these may seem like minor events, they demonstrate that Ms Yuen does at least have some capacity to “let go” and not continue renewing her applications in light of final orders. I take those matters into account.
That being said, however, it is far from certain that Ms Yuen will not institute further unmeritorious proceedings. She has done so frequently in the recent past. I must weigh this risk with the need to shield both Mr Ainsworth and the court from continued expense.
I also have regard to Ms Yuen’s conduct in resisting the vexatious proceedings order sought against her. Her submissions did not demonstrate any insight. She continued to believe there were real grounds for her applications and otherwise blamed Mr Ainsworth for her vexatious proceedings. She also sought to rely on an additional affidavit, some 70 pages in length.
Whilst I am asked to impose an extreme remedy and deprive Ms Yuen of unfettered recourse to the enforcement of the law as is her ordinary right, it will not be in the interests of the parties, the public, or the parties’ child for there to be endless ongoing litigation about her welfare. I have determined that I should make a vexatious proceedings order.
The order will not absolutely bar Ms Yuen’s right to initiate proceedings in any court exercising jurisdiction conferred by the Family Law Act 1975 (Cth). Section 102QE of the Act will apply to Ms Yuen so as to permit her to apply for leave to commence proceedings under the Act should she choose to do so. The court may then grant any such application: s 102QG(3) of the Act.
COSTS
Ms Yuen sought in her submissions that I make an order for Mr Ainsworth to pay her costs of obtaining transcripts. It was not necessary for Ms Yuen to obtain various transcripts as she did not have leave to rely upon her affidavit. In any event, she was unsuccessful in her opposition to the order sought by Mr Ainsworth. There is no reason why the provisions of s 117(1) of the Act should not apply. Each party should bear their own costs.
ORDER SOUGHT AGAINST THE RESPONDENT
In her written submissions, Ms Yuen also sought that Mr Ainsworth be “declared a vexatious litigant” and be prohibited from filing any further applications in relation to the child of the parties.
I do not intend to consider making that order for two reasons. Firstly, there has been no proper application made for a vexatious proceedings order against Mr Ainsworth. Purporting to seek an order in written submissions that has not previously been sought in the proceedings is itself an abuse of the court’s process. Should Ms Yuen wish to pursue such an order, she should file an application in the proper form, subject to the requirement for leave to commence further proceedings.
Secondly, s 102QB(4) of the Act prevents the court from making a vexatious proceedings order against a person without giving that person the opportunity to be heard. Here, Mr Ainsworth has had no opportunity to be heard both by virtue of the fact that no proper application has been made and by the directions of 20 December, 2022 that his submissions be filed prior to Ms Yuen’s.
I therefore decline to make a vexatious proceedings order against Mr Ainsworth.
I certify that the preceding one hundred and five (105) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Jarrett . Associate:
Dated: 20 April 2023
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