Taggert and Tagger (No 2.) - Part 2
In our previous case note on the matter of Taggart & Taggart, we summarised the Court’s decision in relation to an informal adjournment application and whether no-time time orders were in the child’s best interest. The Court were also asked to make a vexatious proceedings order against the Mother.
In this article we explain what a vexatious proceedings order is and look at what orders the Court made in this matter.
The facts
The parties had been engaged in various Court proceedings regarding their 11-year-old child since 2014. In 2016 the Court made orders for the child to live with the Father and spend time with the Mother. After the Mother refused to return the child on two separate occasions, the Court made further orders in October 2018 requiring the Mother’s time to be supervised.
By the time the matter was before the Court in 2020, the Mother had filed 20 different Applications in a Case, an Application to Review a Registrar’s decision, two contravention applications and two appeals. The Mother had also filed an Application in an Appeal.
The law
If the Court is satisfied one party has frequently commenced or conducted vexatious proceedings, section 102QB of the Family Law Act gives the Court power to: -
stay or dismiss some or all of the proceedings before the Court;
make an order prohibiting a party from commencing further proceedings without first obtaining permission of the Court [s102QB(2)(a) and s102QB(2)(b)].
The Court also has the ability to make any order orders it considers are appropriate [s102QB(2)(c)]. The examples given in the Act include making an order that a party can only file documents by post or a cost order.
At section 102Q the Act defines ‘vexatious proceedings’ as:
(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.
In cases where the Court have been asked to make a vexatious proceedings order the Courts have held that in order to make such an order they must be satisfied that proceedings have been commenced in a way that is vexatious, and that this has occurred frequently [see Rilak & Tsocas [2020] FamCA 49]
The decision
Out of the 25 applications filed by the Mother throughout the proceedings, the Court found that 22 were vexatious. The Court found that the Mother failed “to understand the principles of finality of litigation”, there had been considerable costs to the Father and Independent Children’s Lawyer and the Mother had not been stopped by having cost orders made against her.
The Court also noted that the Mother’s conduct impacted other Court users, not just the persons involved in her Court case. The Court stated: -
The mother’s conduct has impacted not just on the parties to this litigation but also on other litigants who have the right to expect that their cases will be heard in a timely manner. Repetitious applications, such as those instituted by the mother, all have to be heard and determined which means applications by other litigants are delayed. [at 152.h]
Due to the vexatious proceedings order, if the Mother wished to file any future proceedings she would first need to have leave of the Court.
When seeking leave after a vexatious proceedings order has been made, the applicant needs to file an affidavit listing all the times they have sought leave to file proceedings and all the proceedings they have filed, including any before the vexatious proceedings order was made, and all facts supporting and adverse to the their application.
Please note: the information in this article is general in nature. For specific advice about your circumstances, contact us to make an appointment with one of our solicitors.