The cases identified here provide examples of the way judicial officers have dealt with some of the issues raised in the context statement.
Click on the citation to be directed to a summary of the case in the Case Database.
Walpole & Secretary, Department of Communities and Justice [2020] FamCAFC 65 (25 March 2020) – Family Court of Australia (Full Court)
Ryan and Aldridge JJ criticised the role of the Secretary of the Department of Communities and Justice (NSW) as the Central Authority in pursuing the matter:
[78] ‘We have been troubled by what occurred in this case and it is timely to mention the importance of adherence to Model Litigant guidelines. The NSW Guidelines, which apply to the Central Authority, requires more than merely acting honestly and in accordance with the law and court rules. Essentially, the guidelines require that the Central Authority acts with complete propriety and in accordance with the highest professional standards. Relevantly, this includes not requiring the other party to prove a matter which the state or an agency knows to be true.’
[79] ‘In this case, the application disclosed the father’s final term of imprisonment in NSW. Even though the Requesting Authority knew that the father was permanently banned from Australia, had effectively been deported and had lived in New Zealand for many years, it would seem that no attempt was made to establish his criminal antecedents or the involvement (if any) of child protection agencies in New Zealand in relation to his other children. The same applies in NSW. To be fair, the Requesting Authority and the Central Authority disclosed the mother’s application for a protection order and thereby flagged that, on the mother’s case, serious risk issues arose.’
[80] ‘It is our understanding that systems are in place in NSW which enable the Central Authority to access/request information from the NSW Police. We assume New Zealand operates in the same fashion. Thus, the Requesting Authority and Central Authority were able to examine and present the father’s complete criminal history and an entire set of COPS records. Instead, it was left to the mother and the ICL to gather records from New Zealand and domestically. It is no small thing to obtain records from abroad, particularly when time constraints are tight. Fortunately, the mother was granted legal aid, but, what we ask, if she was not? How would this young mother on social security benefits have managed to place this vitally important evidence before the court? The prospect that she would not have been able to do so is obvious.’
Theophane & Hunt [2014] FamCA 1038 (24 November 2014) – Family Court of Australia
The father lodged a number of vexatious family law applications including: agreeing to consent orders but still pressing on with interim applications for different orders to those which he had just agreed upon; alleging a contravention without any factual material properly supporting it; application seeking injunctions of previous orders of the court x 2; application to appeal a decision where there was no sufficient change of circumstance to warrant fresh proceedings; application for interim relief to remove the Independent Children’s Lawyer.
Tree J at [243]: ‘It will be appreciated that I have not formed the view that the father’s entire conduct, whether in instituting proceedings or in conducting them, has been vexatious. However I am satisfied that on numerous occasions, either the proceedings have been instituted vexatiously or they have been conducted vexatiously. I am therefore satisfied that the father has frequently instituted or conducted vexatious proceedings’.
GRP v ABQ [2020] QDC 272 (28 October 2020) – Queensland District Court
In considering whether to make a TPO against the respondent, her Honour had regard to the principle in the Act that: “In circumstances in which there are conflicting allegations of domestic violence or indications that both persons in a relationship are committing acts of violence, including for their self-protection, the person who is most in need of protection should be identified” and the respondent’s submission that this principle recognises that: “A cross-application may be used by a respondent to continue victimising the aggrieved person, to exact revenge or to gain a tactical advantage in other court proceedings” (at [34]-[35]).
Groom v Police [2020] SASCA 1 (22 January 2021) – South Australian Court of Appeal
The Court not only dismissed the application for permission to appeal but also held at [10]-[11] that:
“In our view, the latest material filed in support of the application for permission to appeal demonstrates that the applicant continues to attempt to relitigate matters previously ventilated and considered in the Magistrates Court, by the various Judges of this Court and by the Full Court.
We consider the current application for permission to appeal, in the circumstances, to be an abuse of process.”
The Court referred the matter to the Attorney-General to consider whether there were proper grounds for an application to be made under s 39 of the Supreme Court Act 1935 (SA) to stay any further proceedings sought to be instituted by the applicant (at [12]-[13]).
Cannell v G; G v Cannell [2018] TASSC 55 (1 November 2018) – Tasmanian Supreme Court
The defendant was charged with contravention of a protection order when the defendant approached the complainant on numerous occasions to serve her with an application for a restraining order:
Brett J: ‘The evidence overwhelmingly supported the magistrate's conclusion that the defendant had harassed the complainant by following her, and that following her was deliberate and intentional…. Whilst the service of documents on the complainant was a legitimate purpose, it did not justify conduct on the part of the defendant that was in breach of the [protection] order. It goes without saying that there were other ways of achieving that legitimate purpose which did not involve contravention of the family violence order.’ [63]
Baron v Walsh [2014] WASCA 124 (18 June 2014) – Western Australia Supreme Court (Court of Appeal)
McLure P at [63]: ‘the intent or purpose with which legally available procedures are threatened or used can result in the commission of a tort (malicious prosecution, abuse of process) or a criminal offence…Further, the commencement or maintenance of legal proceedings for an improper collateral purpose is a tort: Williams v Spautz [1992] HCA 34; (1992) 174 CLR 509; Flower & Hart (a firm) v White Industries (Qld) Pty Ltd [1999] FCA 773; (1999) 163 ALR 744. A knowingly frivolous and vexatious claim is also an abuse of process.’
Her Honour went on at [65]: ‘To threaten and/or take detrimental action against a person to achieve a collateral outcome is improper (at least) and is to behave in a manner that is intimidating, even if the action involves a person availing himself of legally available procedures. I do not intend to suggest that this is an exhaustive statement of behaviour that is intimidating.’
Conomy v Maden [2016] WASCA 30 (18 February 2016) – Western Australia Supreme Court (Court of Appeal)
The Court at [117]: ‘The paramount responsibility which a judicial officer presiding over a criminal trial owes to the community is ensuring that the accused person receives a fair trial. However, the judicial officer also owes other concurrent responsibilities to the community. In a case such as the present they include a responsibility to see that the accused does not utilise the proceedings as a vehicle for harassment of the alleged victim. The exercise of that responsibility will require vigilance in confining an accused person to asking questions which are relevant to the issues raised for the court's determination’.
The cases identified here provide examples of the way judicial officers have dealt with some of the issues raised in the context statement.
Click on the citation to be directed to a summary of the case in the Case Database.
Walpole & Secretary, Department of Communities and Justice [2020] FamCAFC 65 (25 March 2020) – Family Court of Australia (Full Court)
Ryan and Aldridge JJ criticised the role of the Secretary of the Department of Communities and Justice (NSW) as the Central Authority in pursuing the matter:
[78] ‘We have been troubled by what occurred in this case and it is timely to mention the importance of adherence to Model Litigant guidelines. The NSW Guidelines, which apply to the Central Authority, requires more than merely acting honestly and in accordance with the law and court rules. Essentially, the guidelines require that the Central Authority acts with complete propriety and in accordance with the highest professional standards. Relevantly, this includes not requiring the other party to prove a matter which the state or an agency knows to be true.’
[79] ‘In this case, the application disclosed the father’s final term of imprisonment in NSW. Even though the Requesting Authority knew that the father was permanently banned from Australia, had effectively been deported and had lived in New Zealand for many years, it would seem that no attempt was made to establish his criminal antecedents or the involvement (if any) of child protection agencies in New Zealand in relation to his other children. The same applies in NSW. To be fair, the Requesting Authority and the Central Authority disclosed the mother’s application for a protection order and thereby flagged that, on the mother’s case, serious risk issues arose.’
[80] ‘It is our understanding that systems are in place in NSW which enable the Central Authority to access/request information from the NSW Police. We assume New Zealand operates in the same fashion. Thus, the Requesting Authority and Central Authority were able to examine and present the father’s complete criminal history and an entire set of COPS records. Instead, it was left to the mother and the ICL to gather records from New Zealand and domestically. It is no small thing to obtain records from abroad, particularly when time constraints are tight. Fortunately, the mother was granted legal aid, but, what we ask, if she was not? How would this young mother on social security benefits have managed to place this vitally important evidence before the court? The prospect that she would not have been able to do so is obvious.’
Theophane & Hunt [2014] FamCA 1038 (24 November 2014) – Family Court of Australia
The father lodged a number of vexatious family law applications including: agreeing to consent orders but still pressing on with interim applications for different orders to those which he had just agreed upon; alleging a contravention without any factual material properly supporting it; application seeking injunctions of previous orders of the court x 2; application to appeal a decision where there was no sufficient change of circumstance to warrant fresh proceedings; application for interim relief to remove the Independent Children’s Lawyer.
Tree J at [243]: ‘It will be appreciated that I have not formed the view that the father’s entire conduct, whether in instituting proceedings or in conducting them, has been vexatious. However I am satisfied that on numerous occasions, either the proceedings have been instituted vexatiously or they have been conducted vexatiously. I am therefore satisfied that the father has frequently instituted or conducted vexatious proceedings’.
GRP v ABQ [2020] QDC 272 (28 October 2020) – Queensland District Court
In considering whether to make a TPO against the respondent, her Honour had regard to the principle in the Act that: “In circumstances in which there are conflicting allegations of domestic violence or indications that both persons in a relationship are committing acts of violence, including for their self-protection, the person who is most in need of protection should be identified” and the respondent’s submission that this principle recognises that: “A cross-application may be used by a respondent to continue victimising the aggrieved person, to exact revenge or to gain a tactical advantage in other court proceedings” (at [34]-[35]).
Groom v Police [2020] SASCA 1 (22 January 2021) – South Australian Court of Appeal
The Court not only dismissed the application for permission to appeal but also held at [10]-[11] that:
“In our view, the latest material filed in support of the application for permission to appeal demonstrates that the applicant continues to attempt to relitigate matters previously ventilated and considered in the Magistrates Court, by the various Judges of this Court and by the Full Court.
We consider the current application for permission to appeal, in the circumstances, to be an abuse of process.”
The Court referred the matter to the Attorney-General to consider whether there were proper grounds for an application to be made under s 39 of the Supreme Court Act 1935 (SA) to stay any further proceedings sought to be instituted by the applicant (at [12]-[13]).
Cannell v G; G v Cannell [2018] TASSC 55 (1 November 2018) – Tasmanian Supreme Court
The defendant was charged with contravention of a protection order when the defendant approached the complainant on numerous occasions to serve her with an application for a restraining order:
Brett J: ‘The evidence overwhelmingly supported the magistrate's conclusion that the defendant had harassed the complainant by following her, and that following her was deliberate and intentional…. Whilst the service of documents on the complainant was a legitimate purpose, it did not justify conduct on the part of the defendant that was in breach of the [protection] order. It goes without saying that there were other ways of achieving that legitimate purpose which did not involve contravention of the family violence order.’ [63]
Baron v Walsh [2014] WASCA 124 (18 June 2014) – Western Australia Supreme Court (Court of Appeal)
McLure P at [63]: ‘the intent or purpose with which legally available procedures are threatened or used can result in the commission of a tort (malicious prosecution, abuse of process) or a criminal offence…Further, the commencement or maintenance of legal proceedings for an improper collateral purpose is a tort: Williams v Spautz [1992] HCA 34; (1992) 174 CLR 509; Flower & Hart (a firm) v White Industries (Qld) Pty Ltd [1999] FCA 773; (1999) 163 ALR 744. A knowingly frivolous and vexatious claim is also an abuse of process.’
Her Honour went on at [65]: ‘To threaten and/or take detrimental action against a person to achieve a collateral outcome is improper (at least) and is to behave in a manner that is intimidating, even if the action involves a person availing himself of legally available procedures. I do not intend to suggest that this is an exhaustive statement of behaviour that is intimidating.’
Conomy v Maden [2016] WASCA 30 (18 February 2016) – Western Australia Supreme Court (Court of Appeal)
The Court at [117]: ‘The paramount responsibility which a judicial officer presiding over a criminal trial owes to the community is ensuring that the accused person receives a fair trial. However, the judicial officer also owes other concurrent responsibilities to the community. In a case such as the present they include a responsibility to see that the accused does not utilise the proceedings as a vehicle for harassment of the alleged victim. The exercise of that responsibility will require vigilance in confining an accused person to asking questions which are relevant to the issues raised for the court's determination’.