Graft and McCormick
[2020] FamCAFC 11
•21 January 2020
FAMILY COURT OF AUSTRALIA
| GRAFT & MCCORMICK | [2020] FamCAFC 11 |
| FAMILY LAW – APPEAL – VEXATIOUS PROCEEDINGS – Where the mother appeals from a vexatious proceedings order made pursuant to Part XIB of the Family Law Act 1975 (Cth) – Where the mother’s appeal is devoid of merit and must be dismissed as it raises no question of general principle, reasons for that conclusion may be given in short form (s 94AAA(7)) – Where the mother’s grounds of appeal are not proper grounds as they contain broad assertions or commentary which do not particularise or adequately identify any appealable error – Where the mother seeks to re-agitate issues already dealt with in previous orders or in previous appeals not the subject of this appeal – Where no error is established – Appeal dismissed – Where the mother’s Applications in an Appeal for review of a Registrar’s decision and to adduce further evidence are dismissed – Where there is no order as to costs. |
| Family Law Act 1975 (Cth) Pt XIB, ss 93A(2), 94AAA, 117 Family Law Rules 2004 (Cth) r 22.40 |
| CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67 Graft & McCormick [2018] FamCAFC 49 Harris v Caladine (1991) 172 CLR 8; [1991] HCA 9 McCormick & Graft [2015] FamCA1043 |
| APPELLANT: | Ms Graft |
| RESPONDENT: | Mr McCormick |
| FILE NUMBER: | CSC | 301 | of | 2009 |
| APPEAL NUMBER: | NOA | 58 | of | 2019 |
| DATE DELIVERED: | 21 January 2020 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Kent J |
| HEARING DATE: | 23 October 2019 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 3 June 2019 |
| LOWER COURT MNC: | [2019] FCCA 1852 |
REPRESENTATION
| THE APPELLANT: | In person via video link from Townsville Registry |
| COUNSEL FOR THE RESPONDENT: | Mr Pack via video link from Townsville Registry |
| SOLICITOR FOR THE RESPONDENT: | Collier Lawyers |
Orders
The Appellant Mother’s Application in an Appeal filed on 8 August 2019 be dismissed.
The Appellant Mother’s Application in an Appeal filed on 22 October 2019 be dismissed.
The Appellant Mother’s Notice of Appeal filed on 25 June 2019 be dismissed.
There be no order as to costs of the appeal.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Graft & McCormick has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
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 r 17.02 Family Law Rules 2004 (Cth).
| THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE |
Appeal Number: NOA 58 of 2019
File Number: CSC 301 of 2009
| Ms Graft |
Appellant
And
| Mr McCormick |
Respondent
REASONS FOR JUDGMENT
On 26 November 2015, Tree J made final parenting orders (McCormick & Graft [2015] FamCA 1043), following a four day trial, concerning the children, G, born in 2005 and H, born in 2006.
Those orders provided for the children’s father, Mr McCormick (“the father”), to have sole parental responsibility for the children and for them to live with the father. The orders also provided for the children to spend time with their mother Ms Graft (“the mother”) on weekends and during school holidays, but conditional upon the mother first completing a parenting course.
The mother has steadfastly maintained the position that she will not complete a parenting course with the consequence that the condition referred to has never been fulfilled. Taking into account the fact that the mother had not spent time with the children for more than a year prior to Tree J’s orders, it has now been many years since the children spent time with the mother. They last spent time with her in 2014 when they were aged 9 years and 8 years respectively. They are now aged 14 years and 13 years respectively.
Even a cursory review of the numerous applications and appeals pursued by the mother since the November 2015 orders were made, and the arguments advanced by her in support of them, reveals that the mother is determined to revisit the issues determined by Tree J in November 2015 and to pursue an agenda that the “Family Law Courts” (which can be taken to be a reference to this Court, in both its appellate and trial divisions, and the Federal Circuit Court of Australia (“the FCC”)) have “aided and abetted criminal offences including but not limited to perjury” (see, for example, the mother’s affidavit sworn 5 August 2019 at paragraphs 4 and 5).
On 14 March 2018 Murphy J, exercising the appellate jurisdiction pursuant to s 94AAA(3) of the Family Law Act 1975 (Cth) (“the Act”), dismissed the mother’s numerous applications in appeals and her several appeals then on foot. His Honour’s reasons for judgment delivered on 14 March 2018 (Graft & McCormick [2018] FamCAFC 49) contain a comprehensive summary of the various judgments that have been delivered since the November 2015 orders were made and I respectfully adopt that summary without unnecessary repetition of it.
Notably, Murphy J observed at [31] of those reasons:
31.… Indeed the mother said before me this morning that the various appeals and applications were “simply designed to remove these orders” (that is the orders of Tree J) which are “aiding and abetting child abuse”.
On 3 June 2019, a judge in the FCC, confronted with further applications filed by the mother, made a vexatious proceedings order against the mother pursuant to the relevant provisions of Part XIB of the Act. The trial judge also ordered that the mother pay security for costs in the sum of $5,000 in respect of the mother’s applications filed on 23 November 2017 and 6 April 2018.
These orders were stayed, by consent, on 13 September 2019 following the mother’s filing of an Application in a Case on 26 July 2019. Notably, the mother’s Application in a Case also sought that the orders made by Tree J on 26 November 2015, by Judge Coker on 18 October 2017 (dismissing four Contravention Applications filed by the mother on 3 May 2017, 15 June 2017, 4 July 2017 and 3 October 2017), and by Murphy J as referred to, also be stayed. The application in relation to those respective orders was dismissed and the mother was ordered to pay costs in the amount of $3,547.
This is the mother’s appeal from the vexatious proceedings order and the other orders made on 3 June 2019. The appellate jurisdiction for this appeal is exercised pursuant to s 94AAA(3) of the Act.
Applications in an Appeal
By an Application in an Appeal filed on 8 August 2019, the mother seeks to review a decision of the Appeals Registrar.
That decision, communicated to the mother by letter from the Court dated 6 August 2019, was the refusal to accept for filing an application of the mother seeking to have the proceedings transferred to the High Court of Australia. In that letter, the Appeals Registrar informs the mother that this Court (in either original or appellate jurisdiction) does not have the power to transfer proceedings to the High Court of Australia.
Rule 22.40 of the Family Law Rules 2004 (Cth) (“the Act”) provides:
A party may apply for a review of a Regional Appeal Registrar's order relating to the conduct of an appeal by filing an Application in an Appeal in the Regional Appeal Registry, within 14 days after the order is made.
Such review is a hearing de novo (Harris v Caladine (1991) 172 CLR 84 at 95 and 125-126).
The application which the Registrar refused to file sought the following orders:
1.THAT THE FAMILY LAW MATTER OR FILE NUMBER CSC 301/2009 BE TRANSFERRED TO THE HIGH COURT OF AUSTRALIA BY THE FULL COURT.
2.ALL FAMILY LAW ORDERS BE VACATED.
(As per the original)
That application was supported by an affidavit sworn on 5 August 2019. In that affidavit, the mother advances her reasoning for why a transfer of the matter to the High Court of Australia is appropriate:
…
4.The family law file and or the evidence clearly shows the three family law courts non compliance of their own court rules and basic law
5.These courts and its parties have clearly aided and abetted criminal offences inculding but not limited to perjury
…
13.All legal or court options have been exhausted in the three family law courts and hence I understand the only reasonable and viable option is to move this matter to the High Court on an urgent basis
…
24.The most serious error is the Judges and justices claiming perjury or false claims are acceptable
25.This alone is grounds to have the orders vacated and or the matter moved to the high court
(As per the original)
Regardless of the merit or otherwise of the mother’s arguments, this Court simply does not have the power to transfer these proceedings to the High Court of Australia. The Appeals Registrar was correct in refusing to file the mother’s application. The mother’s review of the Appeals Registrar’s decision is misconceived.
Allied with her application for transfer of the proceedings to the High Court of Australia are the costs orders the mother seeks. The mother seeks the following stated orders:
1.The respondent to pay compensation or costs in the amount of three million dollars
2.Mr Pack (fathers barrister) to pay costs in the amount of 1.5 million dollars
3.Ms Collier (fathers solicitor) to pay costs in the amount of seven hundred and fifty thousand dollars
4. [W Lawyers] to pay costs in the amount of Five Million dollars
5.The Federal circuit court , the family court and the full court to pay costs in the amount of thirty million dollars
(As per the original)
Those orders are contained within the mother’s application for costs. That document states the mother’s assumption that “orders 4 and 5 are going to be stated as not possiable [sic]” and on that basis the mother contends that this “constitutes grounds for the matter to be transferred to the High Court of Australia”.
The mother’s application for transfer is obviously untenable given the absence of any legitimate jurisdiction or power available for this Court to transfer these proceedings to the High Court of Australia.
The mother’s application for review is dismissed.
By a further Application in an Appeal dated 18 September 2019, the mother seeks to adduce, by way of further evidence on appeal, her affidavit sworn on 18 September 2019.
Having reviewed that document and having heard the mother’s oral argument on the hearing of this appeal, there is simply no basis for this Court to receive this affidavit as and by way of further evidence on appeal pursuant to the discretion conferred by s 93A(2) of the Act. Simply stated, none of the criteria for the admission of further evidence on appeal, as identified by the High Court of Australia in CDJ v VAJ (1998) 197 CLR 172, are satisfied.
The mother’s application to adduce further evidence on appeal is dismissed.
Appeal from vexatious proceedings order
At the hearing of this appeal, orders were made granting the mother leave to file and rely upon her Amended Summary of Argument received in the Registry on 18 October 2019 and the mother was also granted leave to further amend her Amended Notice of Appeal filed on 19 September 2019 as to the orders sought on appeal.
The mother’s appeal ought be dismissed. I am of the opinion that the appeal does not raise any question of general principle so that reasons for that conclusion may be given in short form (s 94AAA(7)). Moreover, the singular lack of merit in the appeal renders the conclusion that reasons in short form are all that is necessary.
The mother’s discursive and narrative grounds of appeal contain broad assertions or commentary which do not in fact particularise or adequately identify any appealable error. That is not improved by reference to the mother’s Summary of Argument which is likewise discursive and lacking in particulars. The mother’s preoccupation with the final parenting orders made in November 2015 pervades both her stated grounds of appeal and her Summary of Argument. Broad assertions of criminality or illegality or perjury referable to earlier proceedings do not constitute legitimate grounds of appeal from the subject orders.
I accept the following submission of counsel for the father (paragraph 26 of the father’s Summary of Argument filed on 18 October 2019):
26.… The Mother has taken the opportunity in her submissions to criticise the legal system, criticise judges, allege corruption, allege the parties have committed criminal offences and perjury. These assertions are not submissions but rather broad statements which lack particulars and do not support the grounds of appeal in any way…
To the extent complaints can be identified in the mother’s Amended Notice of Appeal, these are a repetition of the complaints dealt with by previous judges and judgments in the course of these proceedings. The mother persists in her claims of perjury and threats made by the father as well as allegations of the father being drug-addicted, an alcoholic and prone to “sexual misconduct”. These claims have been repeatedly rejected by judges, most particularly by Tree J after a four day trial culminating in the making of final parenting orders. The mother did not ultimately pursue an appeal from those orders, which appeal was taken to be abandoned by operation of the relevant rules of court governing appeals.
It can be seen from the reasons for judgment that the trial judge undertook a fairly detailed examination of the many and various allegations and complaints advanced by the mother historically, and the many occasions on which those allegations and complaints have been rejected, only to be repeated in almost identical applications subsequently filed by the mother. The similarities between these themes referred to by Murphy J in his Honour’s reasons, and in the reasons of the trial judge concerning the judgment before me, continues in the mother’s Amended Notice of Appeal.
Notably, the mother’s application for the proceedings to be transferred to the High Court of Australia is a repeat of the same application made by the mother before Murphy J and made again before the trial judge.
The trial judge correctly identified the law and applicable principles relevant to the making of a vexatious proceedings order pursuant to Part XIB of the Act.
No identifiable challenges were advanced by the mother to the trial judge’s articulation of the law or principles to be applied.
In short, nothing raised by the mother establishes any error on the part of the trial judge.
So far as the mother’s notional challenge to the order made for security for costs is concerned, it can be seen that nothing in the mother’s Amended Notice of Appeal is directed to any challenge to the trial judge’s order requiring the mother to pay $5,000 by way of security for costs for her further applications the subject of that order.
That order for security was made in the context of the mother having filed two further Contravention Applications which, as discussed by the trial judge at [100]–[102], either lack merit completely, or sought to revisit the same issues that had previously been addressed by Judge Coker in his dismissal of four Contravention Applications filed by the mother. Likewise, Murphy J dismissed the appeal from Judge Coker’s orders, but the mother sought to revisit the same issues.
There is no merit in the appeal from the order for security for costs made by the trial judge.
There being no merit in the appeal an order for dismissal is made.
Costs of the appeal
An order was made on 23 October 2019 for the father to file and serve written submissions as to his financial circumstances within seven (7) days of that order. No submissions have been received.
The order was designed to enable the Court to consider, pursuant to s 117(2A) of the Act, updated financial circumstances of the father in order to consider his application for an order as to costs of the appeal.
In circumstances where that order has apparently not been complied with the appropriate order is to order that there be no order as to costs of the appeal.
I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Kent delivered on 21 January 2020.
Associate:
Date: 21 January 2020
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