Garside
[2024] FedCFamC1A 250
•23 December 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Garside [2024] FedCFamC1A 250
Appeal from: Lamport & Garside [2024] FedCFamC2F 1007 Appeal number NAA 351 of 2024 File number ADC 151 of 2023 Judgment of: AUSTIN J Date of judgment: 23 December 2024 Catchwords: FAMILY LAW – APPLICATION IN AN APPEAL – LEAVE TO APPEAL – Where the primary judge summarily dismissed the applicant father’s parenting application having been satisfied he had no reasonable prospect of prosecuting it – Where the father is serving a prison sentence for assault of the parties’ elder child – Where the primary judge accepted expert psychological and psychiatric evidence adduced by the mother – Where the primary judge made an order prohibiting the father from instituting proceedings without leave from the Court – Where the application for leave to appeal is without reasonable ground and therefore vexatious – Leave to appeal refused – Application dismissed. Legislation: Family Law Act 1975 (Cth) Pts VIII, XIB, ss 60CA, 65AA, 102Q, 102QF, 102QG, 102QAB, 102QAC, 102QAE, 102QAF, 102QAG
Family Law Amendment Act 2023 (Cth)
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 13.13
Cases cited: Australian Coal and Shale Employees’ Federation v The Commonwealth (1953) 94 CLR 621; [1953] HCA 25
Pencious & Searle (2017) FLC 93-805; [2017] FamCAFC 210
Penrith Whitewater Stadium Ltd v Lesvos Pty Ltd [2007] NSWCA 103
Tame v NSW (2002) 211 CLR 317; [2002] HCA 35
Thorne v Kennedy (2017) 263 CLR 85; [2017] HCA 49
Whitmore & Whitmore [2022] FedCFamC1A 75
Number of paragraphs: 39 Date of hearing: Determined in chambers on the papers The Applicant: Litigant in person ORDERS
NAA 351 of 2024
ADC 151 of 2023FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR GARSIDE
Applicant
ORDER MADE BY:
AUSTIN J
DATE OF ORDER:
23 DECEMBER 2024
THE COURT ORDERS THAT:
1.The Application in an Appeal filed on 16 December 2024 is dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
AUSTIN J:
The applicant is the father of two children, now aged eight and four years respectively, born to his former marriage with the mother. The children live with the mother and have had no contact with the father for more than four years.
On 31 July 2024, a judge of the Federal Circuit and Family Court of Australia (Division 2) finalised parenting proceedings between the parties and restrained the applicant from bringing any further proceedings without the leave of the Court.
The applicant now seeks leave to bring an appeal from those orders out of time, which application is dismissed for the following reasons.
Background
In 2020, the applicant assaulted the elder child. who was then not quite four years of age.
His attempt was thwarted by the mother, who luckily awoke in time to avert the tragedy. She urgently summoned police, who had to break down the door of the room in which the applicant had barricaded himself with the elder child. Fortunately, the child was revived by paramedics and she progressively recovered her physical health over ensuing months. However, she suffers from post-traumatic stress disorder, diagnosed by the psychiatrist whom she has consulted regularly over the years since the incident. The mother has also since been diagnosed with post-traumatic stress disorder by the clinical psychologist she consults.
The applicant was arrested by the responding police and, after he received some initial medical attention, was charged with a serious offence against the oldest child and remanded in custody with bail refused. He eventually pleaded guilty to the charge and, in 2022, was sentenced to imprisonment. He is eligible for consideration for conditional release upon parole at the expiration of his non-parole period in about mid-2029.
The applicant intended to commit suicide after assaulting the elder child. Police recovered suicide notes he wrote and left for the paternal grandfather, the younger child, and the mother. The sentencing judge found the assault and intended suicide were pre-meditated, and the father’s conduct was found to be motivated by vindictiveness towards the mother.
The mother regards the marriage to have irretrievably broken down at the time of the assault and the applicant has neither seen nor spoken with either child since 2020.
In January 2023, the mother began proceedings for financial relief under Pt VIII of the Family Law Act 1975 (Cth) (“the Act”), which financial cause was resolved by consent orders made in February 2024.
Then, in March 2024, the applicant filed an application seeking relief in respect of the children under Pt VII of the Act. He sought orders enabling his interaction with the children, but also procedural orders appointing an Independent Children’s Lawyer to represent the children and procuring a family report from a court child expert commenting upon, among other things, the children’s views about their potential re-unification with him, the degree of any risk of harm he poses to the children, and how the children could be re-unified with him via the use of counselling.
The mother responded to the application, seeking its summary dismissal on either of two alternate premises under Pt XIB of the Act: first, the application lacked any reasonable prospect of success (s 102QAB(2)); and secondly, the application comprised proceedings which were harmful to both her and the elder child (s 102QAC).
The mother’s summary dismissal application was entertained by the primary judge in July 2024. Judgment was reserved and pronounced two weeks later.
First, the primary judge ordered that the children live with the mother and allocated her sole parental responsibility for them (Orders 1 and 2). No alternate orders were conceivable, given the applicant’s incarceration and the complete absence of contact between the parties.
Secondly, the primary judge summarily dismissed the applicant’s application under s 102QAB of the Act (Order 3). The essential finding behind that order was expressed thus:
122.In these circumstances, I conclude that [the applicant] has no reasonable prospects of being successful in his case and there are no real issues of fact or law which the court needs to determine in this matter. On this ground alone his application should be dismissed.
123.In addition, I am satisfied that, given the evidence currently available to me, I can have reasonable grounds to believe that the continuation of the proceedings would result in both [the mother] and [the elder child] suffering harm.
Thirdly, pursuant to s 102QAC(1) of the Act, the primary judge restrained the applicant from instituting any further proceedings under the Act without the leave of the Court (Order 4). The essential finding behind that order was expressed thus:
130.In my view, it is significant that the power is characterised as being able to be utilised to allow the court’s intervention to be made proactively to limit distress. On the evidence available to me I accept unequivocally that the continuation of the proceedings will occasion severe psychological distress to both [the mother] and [the elder child]. It is also significant, in my view, that such intervention, pursuant to the provisions of section 102QAC(4), can be made by the court on its own initiative.
131.In this context, it is [the mother’s] case, supported by the evidence of her treating psychiatrist [name], that the proceedings have already caused her emotional anguish and will continue to do so if they proceed further. In this sense, although the current proceedings are obviously at a nascent stage, her application to have them dismissed does have a prospective quality, nonetheless.
132.In my view, it would make a nonsense of the provision, if the court, having formed a view that relevant proceedings are likely to cause harm to a party or child, could only intervene under the section, after the conclusion of such harmful proceedings, and only in respect of prospective proceedings.
…
138.In general terms, it seems to me to be unarguable that to utilise ordinary parlance, given the highly unusual circumstances in which these proceedings arise, that [the applicant’s] application must be regarded as psychologically corrosive and so harmful to [the mother] and as a consequence of that it should be curtailed in the exercise of either of the court’s discretions arising under either section 102QAB or section 102QAC.
The primary judge was well aware the applicant wanted to pursue the parenting proceedings to their conclusion by way of substantive hearing and to avoid them being summarily dismissed, but his Honour concluded that would cause the mischief which Pt XIB of the Act is designed to remedy. His Honour found the applicant was afforded procedural fairness by being heard about the procedure and the outcome, saying this in the reasons for judgment:
43.Although the court must be mindful of [the applicant’s] entitlement to have a procedurally fair hearing, this does not mean he has an untrammelled entitlement to examine any issue which is of interest to him. In this context, the court must also bear in mind the child-related nature of these proceedings and the fact that this case is fundamentally an inquiry into what is the best outcome for the children concerned.
…
139.The relevant structure of Part XIB envisages any person who is subject to either a potential harmful proceedings order or an application seeking summary dismissal should be given an opportunity to be heard by the court. Clearly, although due to his incarceration [the applicant] faces some difficulties in this regard, he has been given an opportunity to be heard.
While the applicant disputed the reliability of the expert psychological and psychiatric evidence adduced by the mother confirming the vulnerability of her and the children, the primary judge accepted it at face value (at [77]–[93]).
The applicant did not want to be shut out of the children’s lives, which eventuality the primary judge accepted should not be countenanced lightly, but concluded it was the inevitable consequence for the foreseeable future (at [119]).
Any appeal from the orders made on 31 July 2024 had to be filed by 28 August 2024. However, given the form of Order 4, which injunction does not carve out any exception for appeals, the applicant was thereby precluded from commencing even appellate proceedings without leave (Pencious & Searle (2017) FLC 93-805 at [77]–[88]). Therefore, the applicant was instead obliged to file an Application in an Appeal by 28 August 2024 seeking such leave. None was filed. The applicant did not file his application seeking such relief until 13 December 2024.
The applicant now requires the grant of leave to bring the appeal in two respects: first, leave under s 102QAE of the Act to circumvent the operation of Order 4; and secondly, leave to bring the appeal nearly four months late.
Although the applicant wanted his application determined in open court rather than on the papers in chambers, the latter course is taken because the Act permits it in respect of the first issue (ss 102QAF(3) and 102QAF(4)) and the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) permit it in respect of the second issue (r 13.13(c)). The applicant is not deprived of procedural fairness because his case is fully exposed by the content of his supporting affidavit and draft Notice of Appeal.
Legal principles
Pt XIB of the Act was enacted by the Family Law Amendment Act 2023 (Cth) and became operative from 6 May 2024.
When prosecuting an application under s 102QAE(2) of the Act for leave to institute further proceedings and override the operation of the harmful proceedings injunction, it is obligatory for the applicant to file a supporting affidavit containing certain evidence (s 102QAE(3)) and, absent substantial compliance with the requirements of s 102QAE(3) of the Act, the application may be dismissed (s 102QAF(1)). I proceed on the basis the applicant has complied.
However, the application must be dismissed if the proposed further proceedings fall within the definition of “vexatious proceedings” (s 102QAF(2)) or if the applicant fails to satisfy the Court the further proceedings are not vexatious (s 102QAG(1)). The distinction between the counterparts of those two sub-sections (being s 102QF(2) and s 102QG(4)) has been explained by the Full Court (Darley (No 4) [2023] FedCFamC1A 158 at [13]–[22]).
For the purpose of ascertaining whether s 102QAF(2) or s 102QAG(1) apply to mandate the application’s dismissal, the term “vexatious proceedings” is defined as follows (s 102Q(1)):
vexatious proceedings includes:
(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.
(Emphasis in original)
Sub-paragraph (c) of the definition makes clear that it is enough for the proposed proceeding to be characterised as vexatious if it is “without reasonable ground”.
The orders which are the subject of the applicant’s proposed challenge were all discretionary. When making the parenting orders (Orders 1 and 2), the primary judge had to be satisfied they promoted the children’s best interests (s 60CA and s 65AA). When making Order 3, his Honour had to be satisfied the applicant had no reasonable prospect of prosecuting his parenting application (s 102QAB(2)). When making Order 4, his Honour had to be satisfied there were reasonable grounds to believe one or all of the mother and the children would likely suffer harm if the applicant brings fresh proceedings in the future (s 102QAC).
As the applicant now contemplates an appeal from those orders, the current pertinent question is whether the intended appeal from each of those orders is “without reasonable ground”. If so, leave to appeal must be refused.
Supposing the proposed appeal is not “vexatious”, such that leave to appeal under s 102QAE(2) of the Act is attracted, the applicant must next demonstrate why the appeal limitation period should be extended for his benefit.
The legal principles governing the determination of an application to extend time within which to appeal were stated as follows in Whitmore & Whitmore [2022] FedCFamC1A 75:
17.Countless decisions have addressed the principles which apply to the determination of applications to extend time to appeal. Inevitably, they all lead back to principles enunciated by the High Court of Australia in Gallo v Dawson (1990) 93 ALR 479 and Jackamarra v Krakouer (1998) 195 CLR 516.
18.Essentially, the applicant seeking the extension of time must demonstrate that there is a substantial issue to be raised in the appeal, for otherwise it is pointless granting the extension of time to bring it. That issue is always central to the inquiry, though other considerations then influence the exercise of discretion. Such other considerations are unconfined but include the extent of the delay, the cogency of the reasons offered by the applicant for the delay, whether hardship or prejudice would accrue to the respondent if an extension of time were granted, and the public policy of ensuring that finalised litigation is not unnecessarily re-opened.
Disposition
The applicant’s application for leave to appeal fails at the hurdle because the intended appeal is “without reasonable ground” and therefore “vexatious”. It must be dismissed.
In support of his application, the applicant relied upon his affidavit filed on 16 December 2024. The text of the affidavit contains the applicant’s opinions about how the summary dismissal of his parenting application was not in the children’s best interests, the incorrectness of the expert opinion evidence upon which the mother relied, the way in which his evidence was overlooked, the bias of the primary judge, and the judgment being a miscarriage of justice. However, most importantly, the affidavit annexes a copy of the applicant’s draft Notice of Appeal.
The draft Notice of Appeal comprises four grounds of appeal, which are pleaded as follows:
1.I the appellant (father), self represented, respondent in matter [number], would note: these grounds and the summary in leave to appeal follow the same sequence. The detail in each ground is included to elucidate both the reasoning behind the ground and the evidence it relies upon – particularly important where it has been omitted in the judgement, or only in its nascency due to the early stage in which it was dismissed….
2.His Honour did err in due process of the court, resulting in biasing the evidence, omitted an inaccurate evidence, and preventing advancement of the fathers case; by..…
3.His Honour did err in his findings (understanding of evidence), resulting in one-sided biased opinions, over/under weighing of evidence, and (premature) misjudgements, by..…
4.His Honour did err in his determinations (judgements) due to the aforementioned error in due process, omission of evidence, errors in findings, and by not duly weighing the evidence (unique/incongruent to the matter) or its value; this has resulted in a miscarriage of justice – and in making such determinations endorse the opposite of what would be in the best interests of the children and their wellbeing..…
(As per the original)
The grounds are accompanied by multiple particulars, segregated into separate paragraphs and sub-paragraphs, such that the grounds are collectively pleaded over 13 pages and comprise no less than 83 individual propositions of error.
While such an expansive catalogue of alleged errors might tend to conceal an essential ground (Thorne v Kennedy (2017) 263 CLR 85 at [49]), it is more likely none of the grounds are meritorious when they are pleaded with such prolixity and repetition (Tame v NSW (2002) 211 CLR 317 at 345; Penrith Whitewater Stadium Ltd v Lesvos Pty Ltd [2007] NSWCA 103 at [8]).
Without descending to the detail of the dense sub-grounds, their text is an indiscriminate blend of alleged procedural and substantive errors of law, fact and discretion. The complaints are ethereal, abstract and amorphous, defying any attempt to rationally isolate and specifically address them.
It is enough to observe that the three discretionary decisions reflected in the orders made by the primary judge – being the parenting orders (Orders 1 and 2), the summary dismissal of the father’s parenting application (Order 3), and the harmful proceedings injunction (Order 4) – appear to have been well open, if not inevitable, on the evidence adduced before his Honour. The appeal court would be obliged to approach an appeal from such discretionary judgments from the premise of the strong presumption they were correct (Australian Coal and Shale Employees’ Federation v The Commonwealth (1953) 94 CLR 621 at 627). Nothing within the draft Notice of Appeal or the text of the supporting affidavit suggests the appeal would amount to anything more than an unconfined expression of dissatisfaction with the result.
Even if the first hurdle was surmounted, the lack of ostensible merit evinced by the proposed grounds of appeal is also a bulwark to the grant of an extension of time within which to file the appeal. The litany of grievances the applicant expresses about the result does not reveal any apparent substantial issue to be raised in the proposed appeal.
It is accordingly unnecessary to address the evidence adduced by the applicant about why he took nearly four months to file the Application in an Appeal.
I certify that the preceding thirty-nine (39) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Austin. Associate:
Dated: 23 December 2024
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