Vexatious proceedings and costs orders

Vexatious proceedings and costs orders

Aiden & Grant

1. This matter comes before me as the mother’s application filed on 30 August 2016 to review the decision made by Senior Registrar FitzGibbon on 4 August 2016. The matter has been called on and stood down a number of times during the day due to the other work before the Court but also in order to give the parties and their lawyers an opportunity to clarify various issues of fact. Ultimately, I have been able to make orders by agreement and some orders by the Court. Insofar as the orders are by agreement, the mother has withdrawn her application for review (save in one respect to which I will come shortly). There is an agreement that the daughter, V (“the child”), aged 10, see Dr T, Psychologist, for counselling and that Dr T can at her own initiative contact a psychologist previously retained for the child by the mother on the proviso that certain preconditions which are specified in the orders are met. I have also determined two consequential issues. They are the characterisation of the mother’s application for review as a vexatious proceeding and costs. Finally, I observe that the mother ought to reflect on her position in these proceedings.

Procedural history — brief summary

2. The mother’s application for review of the Senior Registrar’s decision and orders of 4 August was filed on 19 August 2016. It is important to know where it falls in the context of all of the parenting proceedings before the Court.
3. The principal proceedings commenced with the father’s Application Initiating Proceedings which has been placed in Macmillan J’s docket and was listed before her Honour on 12 September 2016 for the first day of the final hearing. At the hearing on 12 September 2016 the mother had an opportunity to assess the viability and amenity of the review application given that a final hearing was about to commence. The mother wished to proceed with the review application and it was listed before me today, and the first day of the final hearing was consequentially adjourned to 12 October 2016 before Macmillan J. Having read the mother’s evidence in support of the review, it is difficult to understand why she chose to persist with it rather than proceed as quickly as possible to a final hearing about parenting arrangements overall.
4. A brief review of the court file indicates that since March 2016, the mother has filed six applications in this court, those being filed on 18 March, 15 April, 15 April, 10 May, 5 May, and 19 August 2016. The mother also filed a Notice of Risk of Abuse on 27 June 2016. Since February this year, there have been 20 appearances in this matter, including delivery of a judgment on 4 August and another on 10 August 2016, when presumably the parties were not required to attend court. There have been two family assessment events, being on 19 April and 28 April 2016. I mention these because there are just too many court appearances in a matter and I am satisfied that all of these court proceedings must be impacting upon the child adversely.
5. Today I released the Department of Health and Human Services response to the Court’s s 69ZW of the Family Law Act 1975 (Cth) (“the Act”) order. That report should be read in its entirety. It has not been tested in cross-examination but there is an internal consistency about it which makes it significant evidence on an interim hearing such as this.
6. It is noteworthy that these parenting proceedings commenced with the mother as the primary carer parent and the father having no time with the child, although there were orders for him to do so. As of today, the child is in the primary care of the father and the mother has not seen nor spoken to the child for approximately four months.
7. The mother has had the benefit of an order that she be able to communicate with the child by telephone, and the child has, with the organisation of the father and as required by order of the court, telephoned her mother twice a week, but the mother has not taken the call.
8. There is an extant order for time to be spent at a supervised contact centre, namely B Street. That has not occurred. There is a dispute about availability of the service. The independent children’s lawyer says that a position was available at B Street for the family as early as late August 2016, but the mother did not avail herself of it. The mother, it appears, does not agree with that. In any case, time has not taken place between the mother and the child.
9. The proceedings will go back to Macmillan J next week. It is clearly a matter which is in need of some robust case management.

Application for Review

10. I have outlined above some of the context within which the application is made. In relation to the application itself, it was withdrawn save as to the mother seeking to alter the arrangements for interim time spent and to replace her sister as the supervisor of any time between herself and the child. The mother is a resident of Queensland. Her proposal was that she spend time with the child from 11 am to 6 pm each Saturday under the supervision of her sister. I do not know her sister’s name. However, she is in court and sitting next to the mother. There is no affidavit material from the sister.
11. I permitted the mother to make an oral application for variation of the spend time arrangements.
12. The father and the independent children’s lawyer did not oppose an oral application but each opposed the alteration of the supervised time to be spent in circumstances where, it is alleged, the mother has failed to avail herself of the current orders whereby she could have spent time with the child for some two hours once a fortnight. It is only a short amount of time, but would obviously have been better than no time at all.
13. I indicated to counsel for the mother that I was not prepared to replace supervision by a contact service with supervision by the maternal aunt. In doing so, I referred to the recent decision I delivered in a matter — Viney & Riley [2016] FamCA 742. I make reference to it so that the mother will understand, hopefully, that I have given some consideration to the appropriateness of relatives being appointed as supervisors. In short, where supervision is necessary, it is necessary that it be done independently and at arm’s length and not by anyone who is partisan to, sympathetic to, or protective of the parent whose interaction with the child is to be supervised.
14. My dismissal of the mother’s oral application is based on me being satisfied that such an alteration is not consistent with the child’s best interests.

Other matters for determination

15. Another matter which I have been required to determine today was a matter which I raised of my own volition, and that is whether the proceedings returnable before me today are vexatious proceedings within the meaning of section 102QB of the Act. Given the number of appearances in court within a short time and the fact that this matter was listed to me on a duty list when it is clearly in the docket of another judge and awaiting a final hearing, I thought it necessary to raise myself the issue of whether the proceeding today is vexatious in nature.
16. I make it clear that I am not, at this point, considering enjoining the mother from being able to institute proceedings without leave of the court. I would merely be characterising the application returnable today as a vexatious proceeding as it is inclusively defined in s 102Q of the Act. The effect of me doing so is that it could, without any ambiguity or further argument, be relied upon in any application which may subsequently be made by a party, or the court’s own volition, under s 102QB. It is a preliminary step only.
17. Counsel for the mother argued cogently and forcefully against a declaration that the proceedings returnable before me today are vexatious proceedings. She conceded that the mother’s application may be considered “ill-conceived” or “overzealous”, but submitted this was really only in light of a report from the Department of Health and Human Services, dated 4 October 2016 (“DHHS Report”), of which no party had been given an opportunity to digest before this morning. I agree that the DHHS Report, albeit untested, makes clear that the child is doing reasonably well in the father’s care and that the child’s concerns are overwhelmingly concerns about the mother’s attitude towards her rather than the father’s care of her. It was open to the mother to delay a prosecution of her application to review the decision of the Senior Registrar but she did not do so.
18. I do not accept that the mother’s application is merely ill-conceived or overzealous.
19. I refer to s 102Q which provides definitions for vexatious proceedings orders. In that section “vexatious proceedings” is inclusively defined, and relevantly for today’s case, it includes in subparagraph (c) “proceedings instituted or pursued in a court or tribunal without reasonable ground”. At this point I am not satisfied that any other of the subparagraphs would apply to the wife’s application to review the orders of the Senior Registrar. I am, however, satisfied that the proceedings were persisted with today without any reasonable ground or basis for success. When I say “proceeded … with today”, I mean that all of the relevant parties were brought to court. The independent children’s lawyer has sat in court for most of the day. She has retained counsel to appear on her behalf. The father has been here all day. He has retained counsel to appear on his behalf. That is the damage. It is no consolation that once they were all here and put to the expense of securing representation and the first day of hearing before Macmillan J was adjourned, that the mother withdrew her application.
20. The withdrawal of the mother’s application for review was eminently sensible, but it was too late. It has already delayed the passage of the proceedings to final hearing and caused each other party considerable expense.
21. Counsel for the mother referred me to the recent decision of Tree J in the matter of Graham & Kovacs [2016] FamCA 281, and his Honour’s reference to the guidance provided by Benjamin J in the earlier case of Cannon & Acres[2014] FamCA 104. In particular, at [21] of Tree J’s decision, by way of summary his Honour says (and I agree):

In Cannon & Acres [2014] FamCA 104 Benjamin J, having discussed the legislative history of Part XIB and recited the above passages, proceeded to also have regard to the decision of Davies J in Attorney General for the State of New South Wales v Gargan [2010] NSWSC 1192 which adopting the earlier decision of Perram J in Official Trustee in Bankruptcy & Gargan (No 2) [2009] FCA 398, as follows:

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.

[13] 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.

22. Counsel for the mother submitted that her client’s review application was not vexatious when it was instituted and that she withdrew it promptly upon receiving the DHHS Report today. I agree that the DHHS Report made the mother’s review application untenable but it was untenable prior to the report. This parenting matter requires a proper investigation and a full final hearing. It is not a matter of chipping away at an unsatisfactory result and/or addressing matters at a series of interim hearings before different judges.
23. The vexatious issue was raised by me this morning at an early stage. I note that the mother has earlier certainly countenanced, if not made, an application in similar terms against the father. In that respect I have been referred to [10] of the Reasons for Decision delivered by Cronin J on 22 March 2016 which refers to the mother having commenced to make such an application orally but then not having proceeded with it. In any event, the mother has been very capably represented by Ms Carter throughout the day, and I am satisfied that the parties have been given an opportunity to address my concerns through their submissions. Ultimately, however, I find that the mother’s review application was pursued without reasonable grounds and that proceedings of this nature are proceedings from which the father and child ought to be protected.
24. I am satisfied that the proceedings are vexatious proceedings within the definition of s 102Q. I propose to make a declaration to that effect in support of my power under s 118(a) to dismiss the proceedings and pursuant to s 34 to make orders of such kinds as the Court considers appropriate. In the event an application is subsequently made by any party pursuant to s 102QB, these proceedings may be relied upon as a previous vexatious proceeding.

Costs

25. An application is made by the independent children’s lawyer and by the father for the mother to pay their costs of this day. The father claims the sum of $1800 and the independent children’s lawyer claims the sum of $1460, the latter being solely counsel’s fees and not including any charge for the attendance of Ms Kourtis at court today.
26. The general provision in the Act is that each party should bear his or her own costs for proceedings (s 117(1)), however, where there are circumstances justifying it doing so, the court may, subject to sections of the Act to which I will shortly come, make such order as to costs as the court considers just. Section 117(2A) of the Act provides that when considering what order, if any, ought be made under subsection (2), the court should have regard to several factors.
27. I am satisfied that, in the circumstances of this case, an order for costs is justified because the mother has been wholly unsuccessful in the proceedings which she has brought to court today. Furthermore, s 188(b) of the Act provides that upon the Court being satisfied that proceedings are vexatious, it may make such order for costs as it considers appropriate.
28. Turning to what order, if any, ought be made, s 117(2A) provides seven factors which inform the exercise of my discretion. It is not necessary for a party to qualify under each and every subparagraph of that subsection; it may be that one factor stands out in particular. In this case, the applicants for costs rely on subparagraph (e) which is “whether any party to the proceedings has been wholly unsuccessful in the proceedings”. Ms Carter concedes that her client has been wholly unsuccessful, which is in the circumstances a sensible concession to make. She contends, however, that subsection (a) which refers to the financial circumstances of each of the parties to the proceedings ought temper any liability for costs so that no order should be made.
29. There was no financial material before the court of which I was aware, however, Ms Carter was provided with an opportunity to cross-examine the father as to his financial circumstances. The father is self-employed. He was previously employed for an income of $85,000 per annum but was made redundant last year, receiving a payout of some $15,000. He has superannuation interests but he has not met a condition of release. He has $200 in the bank as of today and his income is very modest. He says he has received some $800 per month from personal exertion in the last two months. Fortunately for him, he lives with his partner, Ms C, who is supporting him and the parties’ daughter the child by providing them with accommodation, food and other expenses which Mr Grant has needed along the way. Mr Grant has received child support from the mother only once or twice in the sum of approximately $37 on each occasion. However, he pays for all outgoings for the child, with Ms C’s assistance, and inclusive of the out-of-pocket expenses for the Psychologist, Dr T, which should run at about $60 per week. The father is not in receipt of any income-tested pension or benefit and is not in receipt of assistance from Victoria Legal Aid.
30. The mother did not give evidence of her financial situation and no one sought to cross-examine her. Her counsel said from the bar table that the mother is in receipt of an income-tested pension or benefit. The mother resides in Queensland. She will be paying for air fares to come to Melbourne to spend time with the child although notably she has not spent any money on air fares for that purpose in the last four months. She has incurred legal expenses in respect of which she has paid some $6,700, but there are still legal expenses on top of that. Ms Carter submits that her client’s financial resources will now need to be devoted to visiting Melbourne to see the parties’ daughter and to the preparation of her case for final hearing.
31. The independent children’s lawyer also seeks costs. In my view, it is responsible for independent children’s lawyers to seek costs in proceedings, particularly where they have been brought to court and Legal Aid has been put to the expense of representation by the independent children’s lawyer. In this case, the mother and father are not in receipt of assistance by way of legal aid. Of course, the independent children’s lawyer is directly funded by Victoria Legal Aid. But that direct funding means that there is less money available to litigants in the State of Victoria who would also be entitled to legal assistance or, indeed, who may not be entitled because there is insufficient resources within Victoria Legal Aid to pay for their representation.
32. I accept that everyone in this case is of modest means. Modest means or impecuniosity does not provide an indemnity to a liability for costs where other circumstances justify an order being made. I am satisfied that no party in this case is able to afford to incur legal expenses where it is unnecessary for them to do so.
33. I am satisfied that there should be an order for costs payable by the mother to the father and to the independent children’s lawyer but not for all of the costs that they claim.
34. The scale of costs provided for the Family Law Rules puts an appearance for a matter of this nature at $786 to $1817 in the edition of the book that I am referring to. However, I note that was consolidated only to 15 March 2015 and it may well be more today. I am satisfied it is not less. There is nothing advanced by the father or Victoria Legal Aid which indicates to me that either should recover an amount in excess of the scale provided under the Family Law Rulesor any lesser amount at which their brief is marked, and as I have indicated, no claim is made for anything over and above counsel’s fees.
35. I am satisfied that the mother should make a contribution to the costs of the other parties of $900 each (total $1800).
36. The mother says that she cannot pay any contribution to the other parties’ costs. As I have said, impecuniosity is not a defence to liability but I have taken into account that the mother has said that she has had to borrow to fund her own legal representation. She may need to borrow to make the contributions I have ordered.
37. The mother seeks indefinite or the longest possible time to pay. In the circumstances, I will allow 60 days.

Generally

38. This is an adverse result for the mother. No doubt she will feel aggrieved. Her sister has been in court with her today. Perhaps the mother can, with her sister’s support, take stock of her situation. As I have commented above, the mother’s case has gone backwards fast. She has lost primary care of the child on an interim basis and has not availed herself of an opportunity to communicate with, or see, the child. The arrangement for telephone communication cannot continue if the mother persists in refusing to take the child’s call.
39. For what it is worth, the mother’s focus appears to me to be on herself rather than on the child. The court’s focus will be on the child. The mother and those who advise and support her should now consider whether the mother requires assistance or support from a mental health professional to re-frame her perspective on this case and, hopefully, do so prior to the next hearing before Macmillan J.