FLAST CASE SUMMARY: Danvers 2018: Procedural Mistakes/Abuse Of Process
Danvers & Danvers [2018] FamCAFC 262 (21 December 2018)
FACTS
- Final parenting orders made by consent in August 2016.
- The property settlement orders were made in June 2017, that included sale of the house both parties shared, with the division of property interests proceeds for 55%/45% in the husbands favour.
- The husband appealed the property settlement orders and it was dismissed in December 2017.
- The wife in May 2018 seeks orders for the removal of the husband from the property pursuant to the property orders made so she could sell the house. This submission included but is not limited to; the wife’s full control of the sale with engaging real-estate agents and listings, the husband to be abstained from entering the property or approaching the real-estate agents, for the net proceeds of the house sale to be held in the wife’s lawyers trust account until further order. The court granted this.
- The husband then files an application in a case in June 2018 seeking a stay of the orders awaiting the outcome of his appeal for the May 2018 orders.
- The judged dismissed the appeal for there was no appeal orders filed in relation to the May 2018 orders and the appeal period had expired.
- The husband then files again an amended application in a case in July 2018. The husband sought an extensive list that included but is not limited to; the wife be declared a vexatious litigant, the wife be referred to the AFP for perjury, removal of the children from the airport watch list, separating siblings- to have one child reside with him and alternate the other child’s visitations, that he would have sole responsibility of the sale of the house.
- This appeal was dismissed again on July 2018.
- Then finally the husband sought parenting orders that already had been determined and filed an Application in a Case in relation to property orders he was seeking to re-litigate again December 2018.
ISSUE
- Was there apprehended bias against the husband?
- Was there procedural unfairness towards the husband?
- Did the trial Judge make a mistake with the fathers parenting matter that he tried to re-litigate?
- Did the judge make a mistake in relation to ordering costs to the husband to pay the wife when the wife’s solicitor failed to file a notice of address for service in relation to the family matters?
HELD
The appeal dismissed – no order as to costs.
The judge disproved the apprehended bias claim, ‘the issue of bias was not raised with his Honour at any stage during the hearing, and the husband cannot now raise it on appeal’ (Vakauta v Kelly). Moreover, It was established the wife’s lawyer not serving the Notice of Address of Service was a ‘hollow complaint’ given the situation. The father conceded in his argument that he couldn’t afford legal representation anyway, which cancelled out his argument of needing to know if the wife had legal representation so he may get legal representation too, the husband was always afforded the opportunity to have legal representation regardless. As a result, the husband did not demonstrate why the wife should be reprimanded for her lawyer’s actions that appeared for her.
Furthermore, It was established the judge did not afford the husband to make lengthy submissions, however it was evidently proven that the husband attempts to re-litigate the settled property orders was an abuse of process.
Moreover, there was no evidence for the claims the wife needs to be referred to the APF for her allegations of domestic violence and therefore also refused to proclaim her a vexatious litigant; the wife was the respondent not the applicant in the proceedings.
Moving forward, the husband attempted to vary the parenting orders through the amended Application in Case July 2018 in relation to the property issues, instead he should of filed an Initiating Application to commence a new parenting case and attempted mediation first, which is a pre-requisite. The judge dismissed the application due to abuse of process of parenting matters. It was concluded there was no appealable error in the judge not assisting the husband with the understanding of the process of how to initiate parenting orders.
The husband appears to be confused and believes the wife’s lawyer are seeking costs themselves and is disputing this, however it is the wife who assumes costs and is seeking the costs from the husband.The wife had to occur an expense defending a pointless application in relation for the stay of orders may 2018, as no appeal was actually made by the husband, it could never of succeeded, there was no basis to complain of procedural unfairness.
There were various points made throughout this case where the husband fails to understand the process of timing the submissions and when to raise issues in court and in what application.