Zabaneh & Zabaneh

[1986] FamCA 18

In the marriage of ZABANEH, C.M. and ZABANEH, J.

(1986) FLC ¶91-766

Other publishers' citations: (1986) 11 FamLR 167

Full Court of the Family Court of Australia.

Judgment delivered 23 July 1986.

Before: Evatt C.J., Fogarty and Renaud JJ.

Evatt C.J.: This matter is an appeal from the decision and order of Frederico J. made on 28 April 1986. On that date, his Honour dealt with four separate applications made by the husband. There was an application by the husband on 5 February 1986 for leave to file an application for contempt against the wife; an application by the husband for leave to file an application for sole guardianship and custody of the children, filed on 26 March 1986; an application by the husband for leave to file an application for access to the children during the May school holidays, filed on 23 April 1986; and an oral application by the husband for publication of the proceedings.

The order that his Honour made on 28 April was in effect that the husband have leave to bring the guardianship and access proceedings, and that those applications be consolidated with proceedings currently before Treyvaud J. He also made orders about service and the filing of affidavits. In addition, he adjourned without making any filing orders, the applications in regard to contempt and the application for leave to publish. It is against those orders that the wife has appealed today.

The history of litigation in this Court between these parties is a long and turbulent one. That is evident by the list of documents which appears in the record of this Court. It covers a span of six years from March 1980 up to the present time, and it is reinforced by the accompanying list of proceedings set out in the aide-memoire, which I should emphasise we rely on only in regard to its outline of dates, applications and orders.

The two most significant matters to refer to for the purposes of these proceedings are first, an order made on 11 October 1984; and second, an order made on 30 January 1985.

On 11 October 1984, a restraining order was made against the husband. The reasons for the decision are set out in a judgment of Emery J. His Honour restrained the husband from issuing any proceedings or applications against the wife in relation to any matter whatsoever, including any proceedings in relation to the welfare, guardianship and custody or maintenance for or access to the children of the marriage. There are four children of the marriage and their ages now range from 12 to 7.

In his reasons for decision his Honour made the following observations:

``Having reviewed the history of the litigation between these parties since their first separation in March, 1980 it is clear that the husband has pursued a great deal of litigation at enormous expense and created a huge burden both financially and emotionally for both himself and his former wife.

In view of the more recent history, the full hearing in July, 1984 before Smithers J. and the conduct and in particular the applications made since that date by the husband I cannot be satisfied that he will, unless restrained, cease to initiate further unnecessary and badly based litigation.''

That was the essential reason given by his Honour for making the restraining order, made in accordance with sec. 118(1)(c).

A short time after that order was made there was an incident between the parties at the wife's home in December 1984. This was followed by suspension of access and proceedings for contempt against the husband. The temporary suspension of access became a permanent order on 30 January 1985. The reasons for the suspension of access should be referred to at this point. I am quoting from the judgment of Emery J, which is on the Court record. His Honour says as follows:

``Access has been stopped in January and I am now asked to continue with suspension of access... for these children to be required to attend on access.''

And his Honour goes on to say that:

``Access is to stop and not to recommence until there is some change.''

And he said — I will quote from his Honour's words again:

``It behoves him now to set about proving, firstly to the court, and also to the wife... that violence is a thing of the past.''

Now, those were the reasons, essentially, that prompted his Honour, after reviewing the events of December to suspend access. Since that order was made in January 1985, the husband has made four separate efforts to seek leave to initiate access proceedings, and to obtain an order reinstating access.

The first such effort was made by the husband in an application for leave filed on 28 March 1985; leave to initiate proceedings was granted on 31 May 1985. Those proceedings in regard to access were commenced on the same date, and were ultimately dismissed after a hearing in July 1985, again by an order of Emery J., dated 18 July 1985. His Honour once again reviewed the circumstances, the reasons why access was suspended, and the factors which he considered important when it came to consider reinstatement of access. His Honour says:

``As I have set out before, for the children to willingly go to access they must lose their fear, be convinced that the husband is a concerned and loving parent and that there would be no danger to their mother.

This case becomes even more difficult because I am satisfied that the husband does love his children, that he does wish to take a real part in their development and that he has a sincere desire for access. The problem is that, apart from the unfortunate incident on 18 January, 1985 the children's fears are almost entirely due to the actions of the husband.''

And at a later point, his Honour says:

``It is up to the husband to take the necessary action to re-establish contact and it will almost certainly be a slow process.''

His Honour stresses that the husband would have to take steps to regain the confidence of the children and to overcome the anger and suspicion of the wife. His Honour also suggests that the husband might seek the assistance of a psychologist in this.

But the end result of it was that his Honour was not satisfied that the circumstances were then established for a resumption of access.

The husband made another attempt to have his access reinstated. He applied for leave to institute proceedings on 26 November 1985. He was granted leave by Walsh J., and the matter was heard by Emery J. on 19 and 20 December. An order was made on 20 December 1985 dismissing the husband's application in respect of access. There was an appeal against that dismissal, but the appeal itself was dismissed in April of this year.

Turning to the reasons for the decision of Emery J. in December 1985, his Honour reviewed the whole situation between the parties once again. He referred to his earlier decision made in July, and emphasised that the husband, on the evidence before his Honour, had not taken up the suggestions made in the earlier judgment that he should attempt contact with the children, and that he had not indicated any other action taken by him to bring about that result.

So, in other words, his Honour was taking the view that the husband's attitudes had continued unchanged, and that he had not taken any action of his own initiative to remedy the situation that existed between him, his children, and his former wife.

His Honour, at a later point, went on to say that the husband's affidavit gave no indication that his attitude to the wife had changed, and he referred to pamphlets issued by the husband; that he had not indicated that he was any less bitter; that he had not sought any help from a psychologist, and so on. His Honour emphasised that the husband did not appear to have understood the reasons why orders had been made against him, and that he had simply continued in the previous course. In other words, there were no changes in the circumstances, in the background, to suggest to his Honour that the time had come to reinstate access.

A third attempt was made by the husband to reinstate access by his application of 5 March 1986, which was for access at Easter 1986. This was dismissed by Emery J. on 17 March 1986.

In the meantime, the husband had made the application in regard to contempt, on 5 February. On 26 March 1986 he made his fourth attempt, this time in regard to sole guardianship. And then, on 23 April, after the Full Court decision dismissing his appeal, he applied for leave to institute proceedings for access. Those were the matters dealt with by Frederico J., joined together with the contempt matter and the later application in respect to publication of proceedings.

When the matter came before Frederico J., it is fair to say that his first reaction was to be rather disconcerted by the bulk of material that was already on the file. He expressed some horror at the state of the file, but he then went on to consider the matters which the husband had put before him.

The first point that his Honour made was that he did not see that it was his job to investigate the merits of the case; by that I take his Honour to mean the access case. His Honour indicated that the issue was whether it was proper for Mr Zabaneh to have the opportunity of approaching the Court to pursue his case. His Honour went on to say that he found the circumstances were appropriate. It seems that the main reason that his Honour relied upon was the fact that there were currently pending before the Court, before Treyvaud J., proceedings by the wife against the husband for contempt. Those proceedings had arisen from the events of December 1984, and they had been standing over adjourned to be finally dealt with for quite some considerable time.

His Honour was particularly influenced by the fact that Treyvaud J. had requested the preparation of a report which would deal with various matters, including the husband's state of mind concerning the children's wishes regarding access, the husband's desire for future contact with the wife and the children. And I quote from his Honour's reasons:

``Those matters open up the question of the husband's view as to access and indirectly bring into issue the whole question of the welfare of the children. A report will be made to the Court in relation to those matters when the hearing resumes before Treyvaud J. Should it appear from that report that there are matters which would support the husband in his claim as to access to the children and indeed as to custody of the children, it is desirable that there should be an application there and then before the Court; otherwise, the report having been made the husband will have to go away, file his application and then commence the whole procedure.''

His Honour then refers to the principles underlying sec. 118(1)(c) and emphasises that he is not intending to make any finding as to the merits of the case. He goes on to say:

``The course which I am adopting appears appropriate as the question of access is in issue before Treyvaud J., the wife will be present and is represented in those proceedings, and the fact that in any event it is basically desirable that any parent who is denied access should have the right to challenge that denial.''

He went on to grant leave to the husband to institute the proceedings, and he referred them to Treyvaud J. to deal with. He added that he had discussed the matter with Treyvaud J. who agreed to the course that had been proposed.

His Honour's conclusions are challenged by the wife appellant in this appeal, essentially on the ground that on the face of it the husband's application, affidavits and material put to the Court in support of his application to institute proceedings showed no merits in that regard, no grounds for the granting of leave to institute proceedings and no change in the circumstances which had led the Court to deny access or to restrain the husband from instituting further proceedings. On the face of it there are merits in the arguments advanced by the appellant.

In particular, his Honour appears to have placed considerable reliance on the fact that a report was to be prepared in connection with the proceedings before Treyvaud J. Now, it is clear that those proceedings were proceedings against the husband in respect of his alleged contempt. And it is clear that the report that Treyvaud J. had sought related only to the husband's attitudes, state of mind, and so forth. It did not raise any issues relevant to access other than the husband's own attitudes and feelings towards access and towards his children and former wife.

In addition, it should be emphasised that that report was not, at that time, available to the Court. It was in preparation. This brings into question the whole nature of the proceedings which are brought to obtain leave to institute proceedings in accordance with sec. 118(1)(c) and O. 40 r. 5. If one looks at the wording of the legislation and the rules, it is clear that the intention is that the Court may make an order restraining a vexatious litigant from instituting unnecessary and harassing proceedings against the other party, and that the intention is that a person be restrained in such a manner that if that person wishes to institute proceedings, he or she should come before the Court in the first instance on an ex parte basis.

In the matter before us, on at least one further occasion, the husband had come before the Court on an ex parte basis and had actually been given leave to institute the proceedings without any notice being given to the other party. In my opinion, that is not the appropriate way to deal with applications for leave under the relevant section. The purpose of the section is to protect the respondent to the application from being brought to the Court in the first instance. However, if the Court is satisfied on the material before it that there is an issue — that there is a possible ground — on which leave should be given, then it seems to me totally appropriate that the other party should be given an opportunity to put forward reasons against the granting of leave before that order is finally confirmed.

That is not a course that has been followed in the case before us, and indeed, it was not followed I think in the proceedings before Walsh J. But it seems to me that in the matter that came before Frederico J., it was the most proper course to have followed, particularly as the matter which seemed most likely to be relevant to the granting of leave to institute proceedings, was the report which had not in fact yet been prepared. What his Honour has done is in fact to grant leave on an ex parte basis on the basis of a report not yet prepared and without hearing anything that the other party might put forward against the granting of leave, or indeed, in contradiction to matters that might ultimately be set out in the report.

For the respondent husband it has been advanced to us today by counsel that we should admit the report which was later prepared as fresh evidence. The report has been tendered to us for consideration in this regard. That is a report by a Family Court counsellor dated 3 July 1986. We have looked at that report with a view to considering whether it should be admissible in the proceedings before us. In my opinion it should not be admitted as part of the material for consideration by this Full Court, except to the extent that we may take notice of the fact that a report dealing with the matters requested by Treyvaud J. was in fact prepared on 3 July 1986. In other words, that that report does exist. We do not have any regard to the content of the report in these reasons for decision. To do so indeed would be to pre-empt a decision at first instance, which in my opinion, has not yet been made in a satisfactory manner.

In other words, the decision has been made to grant leave without the necessary material being before the Court and without the respondent party having been given an opportunity to put forward material in reply. It would have been preferable in my opinion for his Honour, Frederico J., to defer the consideration of granting leave until the report had been prepared and also to have given the opportunity to the wife to have put forward matters in opposition to the granting of leave.

In a case such as this where there has been so much litigation over the years, so much hostility and bitterness between the parties, and so many difficulties experienced between them, I think it is important to say something about the principles which might guide the Court in dealing with applications for leave to institute proceedings, and indeed, for applications to reinstate access.

The reason why a party is restrained from instituting proceedings in a case like this, is to prevent multifarious overlapping applications between the parties, which amount in essence to a harassment of the other party, and an abuse of the process of the Court, and which involve enormous expense for both the parties and the legal aid office. But, when one comes to consider whether leave should be granted to institute proceedings, particularly in family law matters, one has at some point to consider, after a certain lapse of time, whether it is reasonable to reconsider the issues.

The welfare of children may ultimately demand that issues concerning access, custody and so forth, and so on, be reconsidered, but only when there is some evidence of an underlying change in the circumstances, whether that be in the attitudes of the parties, or the needs or circumstances of the children. The fact that time has elapsed or a considerable time, may be relevant, but it is not the only factor to take into account.

Different issues arise in relation to reinstatement of access. The issues involved in reconsidering access relate much more directly to the children and their needs, their own attitudes and wishes. Time may play a part in this. This Court would not wish to subject children to the repeated intervention of court proceedings to the extent that they have to be reassessed every few months, or every year, by court counsellors to see if they maintain the same attitudes. That certainly could not be encouraged, but there may come a time when there are such changes in the attitudes of the parties, or such evidence relating to the children and their needs and attitudes towards their parents, that it would be reasonable to reconsider access.

The difficulty is that the husband in a case such as this may have no direct evidence to put before the Court relating to the children and their needs, simply because he has had no contact with them over the years. So that if he is to come forward with a chance of asking for, and being granted, leave to institute proceedings he really has few options but to rely on his own state of mind, and to put forward some evidence of change in his own attitudes towards the matter, his attitudes towards his family; to his children and his wife. He might also put forward some changes in his behaviour pattern in regard to proceedings before the Court.

Virtually they are the only matters that he would be able to put forward.

In this case there is some prospect of evidence relating to the husband's attitudes being available to the Court in that a report has been prepared and that, no doubt, would be a matter that the Court would consider in deciding whether to give the husband an opportunity to have the question of access relitigated, because it is only if that chance is given that it would be possible to call for reports about the children, their welfare and their own attitudes and wishes. But as I said before it is not possible at this stage to determine whether there is material on which the Court could rely in granting the husband leave to institute fresh proceedings. There may be such evidence or there may not be.

In my opinion the appropriate course for his Honour to have taken was to have adjourned the matter for further consideration when that report was available. He should then, if justified, have made directions about the service of the proceedings on the wife and have given directions about the filing and service of further affidavits by each party. That in my view was the appropriate course. In those circumstances I believe his Honour was in error in proceeding immediately to the granting of leave. I would therefore allow the appeal, and I would set aside the order made on 28 April 1986. I would set aside para. 2 and 3 of that order, and I would make such orders as were necessary to consolidate the four applications that I referred to earlier, to adjourn them for further hearing. I would direct that service of the applications be effected on the wife and that the husband file further material within 21 days, and the wife within a further 21 days. There is no necessity at this stage to make that dependent on the preparation of the report because that report is now available to the parties.

Fogarty J.: I agree with the judgment of the Chief Judge. In particular, I desire to emphasise what her Honour has said as to the correct procedure which should be applied in relation to applications of this sort. I also agree with the orders which her Honour has proposed.

Renaud J.: I also agree with the orders proposed by the Chief Judge and with the reasons given for those orders.

Evatt C.J.: The order of the Court will be first, that the appeal is allowed. Second, that order 2 of the orders of 28 April be set aside. Next, that the applications of the husband made on 5 February, 26 March, 23 April, and the oral application for publication of proceedings be consolidated and adjourned to be dealt with after the filing of further material. Further order, that the husband file and serve such further affidavits as he may seek to rely on within a further 21 days, and the wife file and serve further affidavits within another 21 days thereafter.

I think in the circumstances that para. 3, 4, 5 and 6 have effectively been displaced by the orders that are now being made, so they, too, can be set aside. And, in my view, it would be appropriate for all these matters to be adjourned to be heard by Treyvaud J., who is already seised by the issues relating to the report to which I have referred. There will be no orders as to costs in this matter.