Graft
[2021] FamCAFC 126
•23 July 2021
FAMILY COURT OF AUSTRALIA
Graft [2021] FamCAFC 126
Appeal from: Graft & McCormick [2021] FCCA 347 Appeal number(s): NOA 9 of 2021 File number(s): CSC 301 of 2009 Judgment of: AINSLIE-WALLACE, WATTS & AUSTIN JJ Date of judgment: 23 July 2021 Catchwords: FAMILY LAW – APPLICATION IN AN APPEAL – LEAVE TO APPEAL – Vexatious Litigant – Application for leave governed by s 102QE Family Law Act 1975 (Cth) – Where the applicant requires the grant of leave to bring an appeal from the dismissal of an application for leave to file a contravention application – Where the applicant advances no reasonable ground for the proposed appeal – Where the proposed appeal is vexatious and the application for leave to bring it must be dismissed.
FAMILY LAW – APPLICATION IN AN APPEAL – ADDUCE FURTHER EVIDENCE – Where the application is dismissed as there is no appeal.
Legislation: Family Law Act 1975 (Cth) Pt XIB, ss 94AA, 102Q, 102QE, 102QF, 102QG
Family Law Regulations 1984 (Cth) reg 15A(1)
Cases cited: Graft & McCormick (2018) FLC 93-836; [2018] FamCAFC 82
Graft & McCormick [2018] FamCAFC 49
Graft & McCormick [2020] FamCAFC 11
Graft & McCormick [2021] FCCA 347
McCormick & Graft [2015] FamCA 1043
Re SCVG (2021) 61 Fam LR 218; [2020] FamCAFC 147
Division: Appeal Division Number of paragraphs: 32 Date of hearing: 15 July 2021 Place: Heard in Brisbane (via video-link), delivered in Newcastle The Applicant: Litigant in person ORDERS
NOA 9 of 2021
CSC 301 of 2009APPEAL DIVISION OF THE FAMILY COURT OF AUSTRALIA
BETWEEN: MS GRAFT
Applicant
ORDER MADE BY:
AINSLIE-WALLACE, WATTS & AUSTIN JJ
DATE OF ORDER:
23 JULY 2021
THE COURT ORDERS THAT:
1.Leave to appeal from the order made by the Federal Circuit Court of Australia on 1 February 2021 is refused and the Application in an Appeal filed on 25 February 2021 is dismissed.
2.The Application in an Appeal filed on 9 July 2021 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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Graft has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
AINSLIE-WALLACE, WATTS & AUSTIN JJ:
The applicant is the subject of an order made on 3 June 2019 under Pt XIB of the Family Law Act 1975 (Cth) (“the Act”) in these terms:
1. That by way of vexatious proceedings order:
(a)The [applicant] be prohibited from instituting proceedings under the Family Law Act 1975 (Cth) (“the Act”) against or in relation to the Father or the Children without first having being granted leave to commence that proceeding pursuant to s 102QE of the Act.
(b)The Applications filed by the [applicant] on 23 November 2017 and 6 April 2018 (“the Applications”) be stayed pursuant to s 102QB(2)(a) of the Act until the [applicant]:
(i)Pays security for costs in the sum of $5,000.00 pursuant to s 102QB(2)(c) of the Act; and
(ii)Obtains leave pursuant to this vexatious proceeding Order to re-commence the Applications pursuant to s 102QD of the Act.
(c) This vexatious proceedings Order does not apply to:
(i)Any costs Application of the [applicant] arising from these Orders, filed within the time prescribed under the Family Law Rules 2004.
(ii)Any appeal from these Orders, provided such appeal is filed within the time prescribed under the Family Law Rules 2004 or such other time as is permitted by Order of the Full Court; or
(iii)Any Application made by the [applicant], within three (3) months of the date of these Orders to the Federal Circuit Court of Australia, seeking leave to enable her to obtain a copy of the transcript of the vexatious proceedings hearing. Nothing in these Orders shall impose any obligation upon the Federal Circuit Court of Australia to provide or pay for the cost of provision of that transcript.
(Emphasis added)
The applicant unsuccessfully appealed from the order and therefore remains bound by the terms of its injunction (Graft & McCormick [2020] FamCAFC 11).
On 1 February 2021, a judge of the Federal Circuit Court of Australia dismissed an application filed by the applicant seeking leave to bring a contravention application prosecuting her former partner for alleged breaches of parenting orders made in November 2015 (Graft & McCormick [2021] FCCA 347). The application for leave was made under Pt XIB of the Act, as the terms of the injunction expressly envisaged.
By an Application in an Appeal filed on 25 February 2021, the applicant now seeks leave under Pt XIB of the Act to bring an appeal from the dismissal order made on 1 February 2021. For the short reasons which follow, the application for leave should be refused.
HISTORY
Litigation between the applicant and her former partner concerning their children extends back many years to 2013. That litigation was finalised by parenting orders made in November 2015 (McCormick & Graft [2015] FamCA 1043). The applicant’s appeal from those orders was abandoned, it being the third unsuccessful appeal by the applicant in the proceedings.
The parenting orders made provision for the children to live with the applicant’s former partner and for him to have sole parental responsibility for the children. The orders enabled the children to spend time with the applicant, but conditional upon her completion of a parenting course. The applicant steadfastly refused to complete the parenting course and so, since about 2014, the children have not spent any time with her. Both children are now adolescent.
In 2017, the applicant unsuccessfully prosecuted numerous contravention applications against her former partner. The applicant’s numerous appeals (and associated applications) from those dismissal orders and other interlocutory orders were heard together and dismissed in March 2018 (Graft & McCormick [2018] FamCAFC 49) and she was later ordered to pay indemnity costs (Graft & McCormick (2018) FLC 93-836).
In November 2017 and April 2018, the applicant filed further applications, which were stayed conditionally by the Pt XIB order made by the Federal Circuit Court judge on 3 June 2019. So far as we know, the conditions were never fulfilled by the applicant and so those applications remain dormant.
In November 2020, the applicant filed an application under s 102QE of the Act seeking leave to bring another contravention application against her former partner. In dismissing that application on 1 February 2021, the primary judge said this:
1.By her application in a case filed on 23 November, 2020 the applicant, [name], seeks an order for leave to file a contravention application. The present application is necessary because there was a vexatious proceeding order made against the applicant on 3 June, 2019. The application proceeded ex parte.
…
6.When I asked the applicant today about what contraventions she wished to pursue by the proposed application in respect of which she now seeks leave, there was no specificity given. It was suggested that all of the orders have never been complied with. There was some focus on the orders that required the provision of information and the authorisations set out in paragraphs 21, 22 and 23 of the orders.
7.But if it is the case that the school has decided not to comply with that order, by refusing to provide information to the applicant, then perhaps the applicant is right about that; perhaps there is not much that can be done about it. That is because, whilst the order does not impose an obligation on the school, it assumes that the school might provide that information to each parent. The school, of course, is not a party to the orders and so there is presently no order that can be enforced against the school. …
8.So I am not so sure that those things amount to a contravention of the orders by the proposed respondent. As I understood her argument, the applicant suggested the father has been complicit, or maybe his lawyers have been complicit in the school’s actions, but I am not sure that that means that they are guilty of contravening the orders.
…
12.Now, all of that amounts to this, I think. The application for contravention that the [applicant] wishes to pursue here is so ill formed in terms of its particularity that leave should be refused. Further, in terms of its prospects of success, having regard to the way in which I have analysed the orders made by Tree J and the applicant’s failure to comply with the condition that would trigger the commencement of time spending arrangements under those orders, there would be no point in granting her leave because the application would have insufficient merit to warrant a grant of leave. Thus, to the extent that the applicant seeks leave to bring an application for contravention, the application is dismissed.
13.That is not as terrible as it sounds, of course, because at the conclusion of her submissions the applicant informed me that, really, she did not care about the contravention. It is all about the proceedings in the High Court. I will watch those with interest.
(Emphasis added)
In these proceedings, the applicant did not deny she told the primary judge she did not really care about the contravention application she was then seeking leave to prosecute. Obviously enough, such apparent disinterest by her in the application bears directly upon the grant of leave she now seeks to bring an appeal in this Court against the order refusing leave to pursue it.
DISCUSSION
The applicant’s application to this Court under s 102QE of the Act for leave to bring an appeal against the dismissal order made in February 2021 must be dismissed if the proposed appeal falls within the definition of “vexatious proceedings” (s 102QF(2)) or if the applicant fails to satisfy this Court that it is not vexatious (s 102QG(4)).
For that purpose, the term “vexatious proceedings” is defined as follows (s 102Q):
“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.
It is enough for the appeal to be characterised as vexatious if it lacks “reasonable ground”.
In support of her application for leave, the applicant filed two affidavits in an attempt to comply with the mandatory requirements of s 102QE(3) of the Act.
Attached to the applicant’s first affidavit filed in support of the application for leave is a copy of the Notice of Appeal she intends to file if leave is granted. The proposed grounds of appeal are these:
1.The judgement, orders and transcript of the first of February 2021 clearly show law, ethical, family law act and criminal offences
2.This means the court orders have been illegally provided and Judgement clearly states it is not within the courts jurisdiction to punish and or address
3.His Honour inadvertently and possibly as a result of misinformation and new to the registry provided false and misleading claims misdirecting himself while clearly supporting and committing criminal and family law act offences
4.An appeal to address my claims and the orders the only available Avenue currently under the orders and claims made by the family court especially as the family law file is currently closed
5.The hearing, judgment and orders of the first of February 2021 is a serious error of principle or substantial misjustice
(As per the original)
As can be seen, even allowing for grammatical errors, none of the proposed grounds as currently formulated constitutes a valid ground of appeal, since they do not identify appealable error. Rather, they amount to no more than a catalogue of complaints, expressing dissatisfaction with her litigious experiences in a variety of different ways.
Compounding the applicant’s difficulty is her misconception of the purpose and utility of the appeal, which is evident from the orders she now seeks by way of relief.
In her Application in an Appeal, the applicant seeks that the appeal proceedings be transferred to the High Court of Australia, notwithstanding Kent J explained in one of her former appeals why this Court has no power to make such an order (Graft & McCormick [2020] FamCAFC 11 at [11]–[20]). The applicant has already tried to circumvent that particular problem by taking her grievance directly to the High Court of Australia, but she deposed she has unsuccessfully attempted to file proceedings there twice and been informed her process is “vexatious”. Her admission of the receipt of such advice has not deterred her pursuit of these proceedings.
Aside from impugning the dismissal order made on 1 February 2021, which is the only order from which the proposed appeal lies (with leave), the applicant foreshadows her intention to seek an order “vacat[ing]” the Pt XIB order made on 3 June 2019. Supposing leave was granted to bring the appeal then, even if it was successful, this Court would have no power at all to interfere with the original Pt XIB injunction. The applicant has already unsuccessfully appealed from that order and so this proposed appeal, intending to attack the order again, could easily be considered an abuse of process, thereby satisfying an alternate limb of the definition of “vexatious proceedings”.
Even if one concentrates only upon the applicant’s presumed intention to set aside the dismissal order made on 1 February 2021 and to then secure leave to bring her prospective contravention application against her former partner for alleged breaches of the November 2015 parenting orders, there are still obvious impediments to the grant of such leave: she does not posit any valid ground of appeal; she does not advance any rational reason to doubt the efficacy of the primary judge’s decision; she professed disinterest in the underlying contravention application; and her challenge to the subject order is misguided, as she is instead incorrectly fixated more broadly upon the adverse results she has experienced over many years of litigation.
In her first affidavit filed on 25 February 2021, the applicant deposed:
6.I am clearly not the party acting in the vexatious, criminal or outside court rules manner and the documented evidence in the three family law courts and through to the high court clearly supports my claims with the parties even to date still providing written documentation of their misconduct and false law, court procedure information annexure 2
…
11.This email or annexure 2 also clearly discusses and implicates the appeals section in supporting of criminal, law and family law act offences especially it’s Judgement and claims regarding the orders of the third June 2019 and should mean they cannot continue to adjudicate matters involving allegations of misconduct against themselves and other courts they have supported without grounds
…
14.So on the first of February 2021 when his honour stated I have not shown contravention of orders this was a false claim and or perjury
…
28.In fact the reasons for Judgement and annexure 2 support my many claims the only viable legal Avenue at this point is that the file and matter be transferred to the high court
29.This should be done on an urgent basis and please do not insult me claiming nobody has the authority to transfer the matter
…
44.Annexure 4 an email sent to the federal attorney general February 2021
45.It was sent on a Sunday, I phoned the attorney general office Monday and asked if the email could be read urgently
…
54.The high court dismissing my application stating I am vexatious just after the first of February 2021 hearing again clearly demonstrates the collusion and corruption and almost makes the request to transfer to the high court simply an extension of the corrupt court proceedings
…
73.I can show perjury and misconduct especially linking the family report writer back to the files opening 2009
74.I have evidence against three registries, registrar Boyd, the ICL, Report writers and at least six judges and justices
(As per the original)
(Emphasis added)In her second affidavit filed on 3 June 2021, the applicant deposed:
22.It should be noted I now have two documents from the high court stating my applications are vexatious and not to file further implicating this court in supporting family court misconduct
…
36.Hence due to the civil suit against Judge [name] and the delays in hearings etc and continued dismissals I intend to commence civil proceedings against at least six judges and justices and the chief justice.
(As per the original)
(Emphasis added)Such florid commentary is not unlike allegations the applicant has made many times before at both first-instance and on appeal. It does nothing to assist her cause in establishing her proposed appeal is founded on “reasonable ground”, so as not to be deemed vexatious.
Also annexed to the applicant’s first affidavit was a copy of the written submissions she made to the primary judge when seeking leave to file the contravention application. She stated in those submissions:
This is no longer simply about orders and or time with the children.
It’s about compensation for eleven years of abuse and misconduct compounded by my [defamation].
In the draft Notice of Appeal annexed to the applicant’s first affidavit, she explains why she is seeking leave to appeal in these terms:
5.I have applied for leave to appeal due to long term claims and orders from both the federal circuit court, appeals section and the high court and due to the orders preventing me from filing in any of the above courts without leave due to vexatious claims and the family law file currently closed preventing any other court avenues
(As per the original)
Clearly enough, the applicant’s grievance is not directed specifically at the order made by the primary judge on 1 February 2021, but with the unfair treatment she perceives she has received over many years on various occasions in numerous different jurisdictions. This Court cannot possibly remedy her ingrained sense of injustice in an appeal which would be necessarily confined to the correctness of the solitary order made on 1 February 2021.
Finally, it is necessary to deal with an Application in an Appeal filed on 9 July 2021, only several days before the hearing, seeking to adduce the further evidence contained within the applicant’s accompanying affidavit. We were content to allow the applicant to rely upon the affidavit, this being the third she filed in support of her application for leave to bring the appeal, but the Application in the Appeal should be formally dismissed because, as yet, there is still no appeal.
The applicant’s affidavit commenced in this way:
1.This affidavit is to provide further evidence of events that have mostly Occurred in the last few weeks but are repeat of previous misconduct…
(As per the original)
In respect of the recent events to which the applicant wanted to draw attention, she deposed:
6.…events of The past few weeks clearly show corruption, collision [sic], criminal offences, false claims especially regarding legal documents, complete disregard of the law, abuse of positions, intimadation [sic], threats and abuse, deformation [sic] and serious animal abuse sanctioned by the family law courts…
(As per the original)
Aside from the applicant’s commentary in the affidavit, which is just a narrative of her beliefs and conclusions, there is little in the way of factual evidence. She annexed some documents, but they comprise only a written complaint she recently submitted to the police, an email she recently sent to the RSPCA, and an unsealed copy of a Statement of Claim she either has filed or intends to file in the Queensland Magistrate’s Court against an officer of a local council. None of the “evidence” tends to demonstrate that the application for leave to appeal should be granted. On the contrary, it tends to deprive her application of merit.
Given the available material, there is no reasonable ground advanced for the proposed appeal from the dismissal order made on 1 February 2021, in which case it is vexatious and the application for leave to bring it must be dismissed (ss 102QF(2) and 102QG(4)).
It is therefore unnecessary to consider the additional question of whether leave to appeal from the order made in February 2021 should be granted under s 94AA of the Act and reg 15A(1)(b) of the Family Law Regulations 1984 (Cth), which would be determined under a quite separate test (Re SCVG (2021) 61 Fam LR 218 at [6] and [26]–[29]).
I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Ainslie-Wallace, Watts & Austin. Associate:
Dated: 23 July 2021
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