Graft - [2021] FamCAFC 126

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 2009

APPEAL 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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Graft

Details

AGLC: Graft [2021] FamCAFC 126
Case: [2021] FamCAFC 126
Decision Date: 23 July 2021

CaseChat Overview and Summary

The applicant, Ms Graft, appealed against the dismissal of an application for leave to file a contravention application by the Federal Circuit Court of Australia. This application for leave to appeal was brought before the Appeal Division of the Family Court of Australia. The applicant sought leave to bring an appeal from the dismissal of her application for leave to file a contravention application, and also sought to adduce further evidence in support of the appeal. The court was required to decide whether there were reasonable grounds to grant leave to appeal, and whether the proposed appeal was vexatious. Additionally, the court considered whether the applicant should be permitted to adduce further evidence.

The court found that the applicant had not advanced any reasonable ground for the proposed appeal and that the appeal was vexatious. The court determined that the application for leave to bring the appeal must be dismissed. The court held that the application for leave to appeal was governed by section 102QE of the Family Law Act 1975, and that the applicant's application for leave was not supported by any reasonable ground for appeal. The court found that the application was vexatious and therefore dismissed the application for leave to appeal. The court also dismissed the application to adduce further evidence as there was no appeal to support.

The court's final orders were that leave to appeal from the order made by the Federal Circuit Court of Australia on 1 February 2021 was refused and that the Application in an Appeal filed on 25 February 2021 was dismissed. Additionally, the Application in an Appeal filed on 9 July 2021 was also dismissed. The form of the order is subject to the entry in the Court’s records.

Orders

Orders of the court

NOA 9 of 2021

CSC 301 of 2009

APPEAL 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).

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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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

ORDER MADE BY:	AINSLIE-WALLACE, WATTS & AUSTIN JJ
DATE OF ORDER:	23 JULY 2021