Mother Contends Father's Applications are Vexatious
Ademis & Beauman [2022] FedCFamC2F 1538 (17 November 2022)
The mother contends that the father’s pattern of issuing and withdrawing or discontinuing applications leads to a conclusion that those proceedings are vexatious. The Court, in determining whether there are vexatious proceedings, s 102QB of Family Law Act 1975.
Facts
Mr Ademis and Ms Beauman have been involved in both parenting and property proceedings in this Court and have also litigated in the Magistrates’ Court of Victoria in relation to Intervention Order and criminal matters.
The parties separated in June 2016 and have one child together, Y, born in 2008. Ms Beauman now seeks that Mr Ademis be declared a vexatious litigant. She proposes that he either be restrained from instituting proceedings under the Family Law Act 1975 (“the Act”), or alternatively, be restrained from instituting proceedings under the Act unless he also pays to the Court the sum of $50,000 by way of security of costs. Despite the relief sought being final in nature, neither party sought to cross-examine the other.
Ms Beauman relies on 7 applications made by Mr Ademis that she contends constitute vexatious proceedings. This was an application brought by Mr Ademis in relation to parenting matters. He deposes to bringing this application “after trying and failing to engage with [Ms Beauman] on parenting matters other than X’s spend time arrangements”. He discontinued that application on 14 May 2019, on his evidence, after the parties “progressed discussions on X’s parenting arrangements”.
Ms Beauman contends not that Mr Ademis’ application of itself is vexatious, rather it can be so characterised because it was one of several applications that Mr Ademis filed but did not pursue.
Issue
Whether or not the applications should be granted.
Applicable law
Family Law Act 1975 (Cth) s 102QB - provides that vexatious proceedings relevantly include those that are an abuse of process of a court, those that are instituted or conducted in such a way as to harass or annoy, to cause delay and detriment, or for another wrongful purpose, and those that are instituted or pursued without a reasonable ground.
Rilak & Tsocas [2020] FamCA 49 - relied upon in holding that changed circumstance and the relative narrow compass of the application is not indicative of a refusal to accept the finality of the proceedings which may produce vexatious conduct.
Analysis
Ms Beauman accepts that the circumstances of this case are not factually similar to those in Safford & Kelso, but relies on the case in support of a submission that a pattern of issuing and withdrawing applications may lead to the conclusion that those proceedings are vexatious. It will accordingly be necessary to return to a consideration of whether such a pattern of behaviour has the consequence that applications Mr Ademis has made and either withdrawn or discontinued, are vexatious. Ms Beauman does not submit that this application, taken on its own, can be characterised as vexatious. There is force in Mr Ademis’ submission that were he to have continued the application in circumstances where the parties had progressed their discussions, he would have been appropriately criticised for doing so.
It is difficult to see how, in that context, the application could properly be characterised as vexatious.
Conclusion
All extant applications be dismissed. Any application for costs be filed by way of written submissions within 14 days. Any reply to any application for costs be filed by way of written submissions within 28 days.
