Children – vexatious litigant’s leave application fails – primary motivation in seeking parental responsibility to challenge deceased mother’s will

In SCVG [2020] FamCAFC 147 (12 June 2020) the Full Court (Strickland, Ainslie-Wallace & Austin JJ) dismissed an appeal in a case where a vexatious proceedings order had been made in 2015 prohibiting the father of two children from instituting proceedings.

The mother had since died, the father seeking leave to file fresh parenting proceedings in 2020 where the mother had appointed her siblings as the children’s guardians. The father sought parental responsibility orders, contending that such orders would enable him to challenge the mother’s will on behalf of the children ([40]).

The Full Court said (from [32]):

“The application must be dismissed if the intended proceedings are vexatious proceedings (s102QF(2)). Alternatively, leave may be granted only if satisfied that the proceedings are not vexatious proceedings (s102QG(4)). The applicant bears the burden of proving the intended proceedings are not vexatious.

(…)

[42] From the applicant’s evidence it is manifest that his principal objective is to bring the proceedings…, to obtain parental responsibility…for the collateral purpose of facilitating his prosecution of separate testamentary proceedings in a different jurisdiction…

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(…)

[44] It is accepted as being plainly abusive of civil process to institute proceedings for an improper purpose…which include the use of the proceedings for the predominant or substantial purpose of obtaining some collateral advantage rather than for the purpose for which the proceedings are designed and exist (Williams v Spautz [1992] HCA 34; (1992) 174 CLR 509 at 522, 528–529, 532 and 536–537).

[45] In Goldsmith v Sperrings Ltd [1977] 1 WLR 478 at 503…it was said:

‘…[I]f it can be shown that a litigant is pursuing an ulterior purpose unrelated to the subject matter of the litigation and that, but for his ulterior purpose, he would not have commenced proceedings at all, that is an abuse of process…’

[46] While the applicant’s immediate purpose in bringing the Part VII litigation is to secure an order vesting him with parental responsibility…being an order within the scope of power wielded by the Family Court of Australia, the applicant admits he has an ulterior motive for pursuing an order in those terms. He called it the ‘decisive’ reason for bringing the proceedings. His pursuit of the Part VII order for the predominant and ulterior motive of prosecuting other civil…converts the intended Part VII proceedings into an abuse of process.”

Robert Glade-Wright is the founder and senior editor of The Family Law Book, a one-volume loose-leaf and online family law service (thefamilylawbook.com.au). He is assisted by Queensland lawyer Craig Nicol, who is a QLS Accredited Specialist (family law).

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