Home Fam-Court CPS Let’s Roll, Part 5: Abuse of Process Is Actionable!

CPS Let’s Roll, Part 5: Abuse of Process Is Actionable!

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by Mary W Maxwell, LLB

Could have knocked me over with a feather. I had no idea until today that you can sue in civil court over your opponent’s having committed abuse of process. Of course I had been aware that a judge can throw out a case by accusing a plaintiff of abusing process. They do it a lot. But I did not know that abuse of process is a tort.

You can be awarded damages the same as if the person broke your Wedgewood china. Or blew your reputation. Or invaded your privacy. Or neglected their duty towards you. Lawsuits for tortious actions are the bread and butter of most civil courts. A CPS-aggrieved Protective parent could increase court business just by attending to the spouse’s abuse of process. This is great.

There is a catch; I’ll explain later. But let’s start with the more normal use of the phrase “abuse of process.” That’s when a judge says you are asking the court to go through its procedures in order to waste time, or maybe to get some benefit unrelated to the case. If I were a judge I’d be happy to kick a case out of court if I felt the person were abusing this judicial arena.

What Is a Benchbook?

Allow me an aside here about benchbooks. Judges need to have a handy guide, an operator’s manual type thing, for reading out instructions to a jury, for knowing when to call the bailiff, and so forth. The American benchbook is freely downloadable (300 pages) at fjc.gov. It says:

“The Benchbook is an ongoing compilation of information that federal judges have found useful for immediate bench or chambers reference in civil and criminal proceedings. It contains sections on such topics as assignment of counsel, taking guilty pleas, standard voir dire questions, sentencing, and contempt. The sixth edition, published March 2013, adds new sections on disclosure of exculpatory information under Brady v. Maryland, civil case management, and restraint of dangerous defendants (‘shackling’).”

Of course a private organization can offer a benchbook for use by judges. A benchbook’s words are not “law,” OK? — but a judge can voluntarily use it. The reason I am bringing this up is that I found a benchbook produced by The Australian Institute of Judicial Administration, in partnership with the University of Queensland Law School.

It is called the National Domestic and Family Violence Benchbook. It conveys amazing information about the abuse of process that can be undertaken by “a pedo dad.” Not that they use that term, of course.  I will now print an abridged segment of it. Please read it before we get to the tort discussion. I’ll add a touch of bolding.

National Domestic and Family Violence Benchbook (at dfvbenchbook.aija.org.au)

[Be alert to] various forms of … abuse of processes that may be used by perpetrators … to reassert their power and control over the victim. A party to proceedings in domestic and family violence related cases may use a range of litigation tactics to gain an advantage over or to harass, intimidate, discredit the other party. These tactics may be referred to in legislation …as malicious, frivolous, vexatious…

Perpetrators of domestic and family violence who seek to control the victim before, during or after separation may make multiple applications and complaints (in multiple systems) … with the intention of interrupting, deferring, prolonging or dismissing judicial processes, which may result in depleting the victim’s financial resources and emotional wellbeing, and adversely impacting the victim’s capacity to maintain employment or to care for children.

In the court system, this tactic is known as ‘burning off’, and is prevalent where a victim lacks the financial resources to engage legal representation, and the perpetrator is either financially well-resourced or wiling to incur debt… and fund multiple actions over extended periods.

Where the perpetrator is aware that the victim may be in a financial position to engage solicitors, the perpetrator may use a different tactic known as ‘conflicting out’, which involves seeking preliminary advice from multiple lawyers [especially in small towns] so as to deny the victim access to legal representation on the basis of conflict of interest.

Although there is a widespread belief in the community that mothers … fabricate allegations to influence family law proceedings, …it is more likely that they will be reluctant to raise allegations for fear of having their motives questioned.

Cross applications for family violence protection orders may be used by some perpetrators to intimidate the victim into withdrawing their application. Perpetrators in these circumstances may seek a cross order to neutralise the effect of the victim’s order. Some cross applications may be genuine, but those that constitute intimidation may have the effect of trivialising silencing the victim’s claims for protection.

Victims who have limited or no English literacy skills and uncertain immigration status, may be vulnerable to further abuse by the perpetrator through judicial processes. Some commonly reported examples include the perpetrator: failing to appear in court; repeatedly seeking adjournments; appealing decisions on tenuous grounds; obtaining a protection order against the victim and misleading the victim into breaching the order [wow] ….

In the context of judicial proceedings, a victim may feel intimidated, isolated or neglected by, for example: having to sit in proximity to the perpetrator and their family and friends in the courtroom; experiencing condescending, language from defence lawyers or judicial officers; in some courts, being cross-examined directly by the perpetrator (who may have chosen to self-represent so as to secure this opportunity); feeling unable to effectively advocate on behalf of children in their care; or enduring the ongoing economic impact of being a party.

Judicial officers may need to weigh up and assess requirements for procedural fairness [against] the perpetrator’s exploitation of the justice system.

Processes, when used by a party with improper intent, could amount to malicious prosecution, abuse of process or a criminal offence. – End of excerpt from Benchbook. [All emphasis added.]

What Every Protective Parent (and Lawyer) Knows

This series is being written for Protective parents, but I happily include things that may assist the general public in its understanding of the courts. Here we see that lawyers are aware of the trick often played by a child abuser in a custody case.

Come to think of it, it’s probably not so much that the lawyer is aware of what the abuser will do, the lawyer recommends that he do it. An honest judge in such a case can dismiss the motion by the abuser (say, for trying to intimidate the victim to withdraw an application for an RO – restraining order) – and call out the lawyer. Maybe this never happens, I don’t know.

To recap the benchbook, an abuser can

— litigate against a Protective parent in order to harass, intimidate or discredit – which may trivialize or the victim’s request for protection

— file motions repeatedly for the purpose of economically disempowering the other person, making him or her less able to hold a job or raise children

— prevent a person from being able to acquire a legal representative by engaging the whole town’s lot of lawyers (known as “conflicting out”).

So You’ll Have To Fight Back

Clearly such behavior has been very effective. It can reduce a mother to a state of hopelessness. In all humans, the brain makes ongoing calculations of one’s chances. If the chances look overwhelmingly bad, the brain “gives up.”

In writing articles for Gumshoe about the Protective parent situation, I have been trying to point out whatever exists “on the books” that can now be employed in your cause. I have been ignoring the problem of a parent’s personal state of hopelessness, and shall continue to do so. It’s not for nothing that the present series is entitled “CPS Let’s Roll.”

Here is what can be employed in regard to abuse of process:

  1. You can sue the other party for abusing process (“conditions apply”, see below).
  2. You can make a complaint to a prosecutor to get the other party charged with criminal abuse of process (my fave).
  3. You can bring action against a judge – such as  impeachment, in the US – for appearing to condone abuse of process (on second thought, that’s my fave).
  4. You can try to get a lawyer disbarred by going to your state’s Bar Association, Law Society or licensing board with a serious charge of professional misconduct for participating in this illegal attack on you.

I said conditions apply to the first option. Unfortunately you cannot raise the suit against the process-abuser until you have won. Or so they say.  I know this is true as regards the tort of “malicious prosecution.”

Consider the case of Jahar Tsarnaev. I compiled a book of the wrongs that were involved in prosecuting him for the bombing of the Boston Marathon (name of book: The Soul of Boston). He is in jail on Death Row. If he gets acquitted (not pardoned) then he can sue the bastards for malicious prosecution. But so long as he is “justly imprisoned” – as, technically he is now – this tort is not available.

That said, I see on a lawyer’s website that “A plaintiff can sue for abuse of process when a defendant starts a legal process with the intention to obtain results for which the process was not designed.” That seems more reasonable than waiting. That website  (alllaw.com) also says:

“The best way to think of the ‘improper purpose’ [of court] requirement … is that, although the defendant had a technical right to use the legal process, he or she did so to extort something else from the plaintiff. For example, trying to tie up property in a divorce proceeding in order to get the other spouse to agree to different child visitation rights. It is worth noting that abuse of process claims are difficult to prove and are typically unsuccessful.”

Let’s All Move to Western Australia

There is important precedent regarding abuse of process in a ruling by the highest court of Western Australia — and so it is binding on any further rulings in that state. Other states can quote it in their reasoning, although they are not bound to do so.

The case is Baron v Walsh, decided in 2014. It has to do with the WA’s Restraining Order Act 1997, abbreviated as the ROA.  Two kinds of restraining orders are: a Violence Restraining Order, known as a VRO, for persons not related to one another, and a FVRO, a Family Violence Restraining Order.

I do not know the details of the case, which had partly to do with using text messages as evidence of intimidation. Mrs Baron took out a VRO on her ex-partner. Then she complained to the Magistrate’s court and the District Court about the ruling that ensued. (Note: she did not sue — the complaint appears in her appeal.)

The three judges of the Supreme Court unanimously overruled the District Court. The question was whether a person can “absolutely” use a legally available process (for example, could the ex-husband take out a VRO in order to mock her VRO?). Said Judge McLure writing for the full court:

“63 It can be assumed for present purposes that recourse to legally available procedures without more [such as harmful intention] will not ordinarily constitute an act of abuse under s 11A of the ROA. However, 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.

For example, a threat made with intent to cause or compel a person to settle an action is a criminal offence under s 338A of the Code: Tracey v The Queen [1999] WASCA 77 [11] – [16]. See also The Queen v Jessen [1996] QCA 449; (1996) 89 A Crim R 335.

Further, the commencement or maintenance of legal proceedings for an improper collateral purpose is a tort: Williams v Spautz [1992] Flower & Hart v White Industries  [1999] A knowingly frivolous and vexatious claim is also an abuse of process.” [Emphasis added]

To conclude: using the court for the wrong purpose is a no-no. Don’t let them get away with it.

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28 COMMENTS

  1. I noticed in another case (sorry, can’t find it now) that the Court ruled that it was not wrong for the litigant to file a police complaint about perjury while the case was still ongoing.

    Isn’t that magniff?

  2. We are taking requests. I dont know what subject matter to use for the final part of this six part series. It has to have a Let’s Roll attitude.

    All suggestions will be considered. Ta.

  3. There is another abuse of process that will totally blindside a genuine participant in FLA anyway. Their very own representative may be playing a duplicitous role. Runs along the lines of a party needing representation is self claiming incompetence. Hit them in the “escrow account” if you be unfortunate enough to be dealing with this currently, hard to claim no in-proprietary when most folio actions are.
    Its a meat grinder out there and I’d be far happier watching the “foxy boxing”.

  4. In your articles you continually state eg “a pedo father”, when there are many pedo mothers. “Abusive father”, there are many abusive mothers. “It can reduce a mother to a state of hopelessness” What about protective fathers who are reduced to a state of hopelessness? Many fathers commit suicide due to loosing all contact with their children and feelings of hopelessness. Many mothers and abusers receive free legal aid. That is not a luxury available to the majority of fathers.

    • Actually most self-centred women lean more toward subjecting their children to gold-digging & gossip than physical abuse. The culture of the Age simply does not acknowledge that both are equally ruinous.

  5. So VROs are part of civil law ?
    I’d have thought that any process involving the Po( or any gov agency for that matter) was criminal

    So if the W. A. equivalent of CPS files an application to have your kid made a State ward ( I’m guessing that’s how they go about it) you can put a spanner in the works via an “abuse of process” claim?

    Certainly a good idea, particularly as such agencies only ever target the perceived weakest link. Having to deal with such a “victim” taking over the drivers seat would be the last damn thing they were counting on( hence my “little old lady with a brick in her handbag” analogy a few Posts back)

    • I’m guessing it rarely gets used ‘cos most lawyers don’t like to rock the boat? Which kinda goes hand in glove with not being geared toward anything more than minimising work & maximising profit.

  6. What tends to get overlooked is that the very VRO concept is contrary to the Rule of Law as is the very foundation of the Family Court, that both were instituted to the sole purpose of putting a lid on social problems that, left to run their natural course, would topple the entire governmental system

    • Berry, you said: “So if the W. A. equivalent of CPS files an application to have your kid made a State ward … you can put a spanner in the works via an “abuse of process” claim?”

      Yes, I think so. That would also hold for an environmentlist group that is being toyed with in another court vi a SLAPP siut. That is, a big corporation is filing against them to impverish them, o r”trivialise” their claim.

      Recall, however, the catch 22 — to win the abuse of process tort you (allegedly) have to have won the case about which it is making a fuss. I want to add that I boast NO expertise here. I only discovered Baron v Walsh in connection with the usual Mum business. Still, it does make sense, doesn’t it. An abuser of the court is also (in some cases) abusing the other party.

      Maybe we should get psychiatrist Paul Mullen’s opinion….

  7. Time to listen again to our Prime Ministers words

    The Prime Ministers National Apology (Full Speech) 22 October 2018

    maybe this is why so many have jumped ship-draining the swamp

    PM speaks of “enemies in our midst”—-

    “when a child spoke up they were not heard”—
    “to the whistleblowers we did not listen to -we say sorry”
    “to the spouses partners wives husbands children who have dealt with the abuses coverups and obstruction sorry”

    “To generations past and present -sorry”

    “National Apology survivors Reference Group—apology without action is just a piece of paper”

    “commonwealth must lead and coordinate our response”

    “The National Office of Child Safety—works within social services—Minister of Social Services— will report directly to him, to ensure cultural change, and systemic failure and abuses of power will be addressed.”

  8. Found on Facebook

    https://www.gofundme.com/media-mail-out-for-martin-bryant?pc=fb_dn_postdonate_r&fbclid=IwAR2kbF0aUUD2RWYY-0ZNqsazNhNeEVGf5rKhla0zAGCPfoDq0BaGGmCHQGo

    Thank you everybody in advanced for donating what ever you can, all money raised will be going towards doing a Project which is as follows, I will be burning to CD / DVD 16 letters which i have been sending around to people to try and expose The Port Arthur Massacre as a False Flag Terrorist Attack, my idea is to send 10 Burn CD / DVD to The Offce Secretary of the following TV Shows, 7.30 Report, Sunday Night, A Current Affair, 60 Minutes, The Project, Australian Story, The Drum and SBS Date Line, and ask her to pass the CD / DVD around to The Executive Producer, Producers, TV Journlaist, and other Office Support Staff, by doing this sending out about 90 CD / DVD if she does as follows and pass them about the Office to all the people mentioned that is 90 – 100 people or more that will read these letters and once and for all we would of attacked the Mainstream Media on mass and educated them all to what really went on that day and how Martin Bryant is innocent.

  9. Also Off topic–but

    At this very moment -all of our power poles in our street are being replaced with taller poles to carry the heavy cable needed to install a cell tower–two trees removed -“as if there are surges -trees could ignite”

    “Public attention about 5G has been focused on the plans of telecom companies to install millions of small cell towers on electric utility poles, on public buildings and schools, on bus stop shelters, in public parks, and anywhere they want in national parks and on federally owned land.

    In local urban communities there would be a cell tower approximately every 500 feet along every street.”

    http://healthimpactnews.com/2019/20000-satellites-for-5g-to-be-launched-sending-focused-beams-of-intense-microwave-radiation-over-entire-earth/?fbclid=IwAR1JoO3rTVpVFOszT4NYMtnLzOe6LDdBzyVk-Rb79euCwsRVjulrXEChFRo

    • Twenty years ago towers were not pernitted in close proximity to schools and other places. Could not be within certain radius. Now they are springing up everywhere.

      • friends of friends have made a financial killing getting these towers built! “love of money IS the root of all evil” – it leaves ethics for dead.

        • While the sciencepost article reeks of black humour, not so funny is the merger between Monsanto & Bayer. Glyphosate (active ingredient in Roundup) was classified as “probably carcinogenic to humans” by WHO’s IARC in March 2015. It has been banned in several European countries eg.Flemish Belgium, Netherlands, France. Germany was debating a ban in April 2018. Many other countries are seeking to restrict, if not ban it. Whilst the US has not banned it, California has, & several other US towns & cities are standing against the ‘toxic chemical’ (according to Organic Consumers Association). Australia has not yet joined the fray, but Vietnam (one of our largest markets for wheat exports) has banned it (according to ABC 11 Apr). That Bayer intends to drop the name off its products (ref https://phys.org/news/2019-03-bayer-monsanto.html ) reeks of a LACK of transparency/honesty!

  11. Thank you for the apology text, Diane. I would call this one a la la pahlooza, given what we now know about the RC having shot the door on current victims:
    .
    “to the spouses partners wives husbands children who have dealt with the abuses coverups and obstruction sorry”

    Or, if it’s not a la la pahlooza, the apology was deliberate torture

  13. A couple of quotes from the above post:

    “Kevin Rudd said sorry, God bless him! But he could’ve stuck it where the sun doesn’t shine, because the reality is, nobody gives a shit that he stood up and said sorry. If they did, no child would be removed within Australian borders.”

    “First Nations grandmothers call for an end to racist child removals
    400 people gathered to mark the 22nd anniversary of Sorry Day and call for government action”

    “In November of last year, my workplace, the NSW Parliament passed a fresh set of laws that made it easier for First Nations kids to be taken from their families. So we need to learn the history of First Nations peoples and the collective trauma that they are suffering… We need to not just cry tears about it, we need to stand shoulder to shoulder with Hazel and Helen and fight to get their kids back, and fight to change the laws.”
    “Stealing children and stealing water are two sides of the same coin”, Shoebridge quipped.

    by Liam Thorne
    May 24, 201

    “Stealing children and stealing water are two sides of the same coin”, Shoebridge quipped.”

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