Graft & McCormick
[2021] FCCA 347
•1 February 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
Graft & McCormick [2021] FCCA 347
File number(s): CSC 301 of 2009 Judgment of: JUDGE JARRETT Date of judgment: 1 February 2021 Catchwords: FAMILY LAW– The Family Law Act 1975 (Cth) and related legislation – procedure – application to institute proceedings – vexatious proceedings order in place Number of paragraphs: 13 Date of hearing: 1 February 2021 Place: Townsville Applicant: The Applicant appeared on her own behalf Respondent: No appearance ORDERS
CSC 301 of 2009 BETWEEN: MS GRAFT
Applicant
AND: MS MCCORMICK
Respondent
ORDER MADE BY:
JUDGE JARRETT
DATE OF ORDER:
1 FEBRUARY 2021
THE COURT ORDERS THAT:
1.The Application in a Case filed 23 November 2020 be dismissed and the proceedings are removed from the Active Pending Cases List.
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment under the pseudonym Graft & McCormick is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE JARRETT
By her application in a case filed on 23 November 2020 the applicant, Ms Graft, 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.
That order was made against the background, a long background, of litigation between the applicant and the respondent concerning their children. There was a proceeding in the Federal Circuit Court in Cairns. The most recent order concerning the children is an order made by Tree J, in the Family Court of Australia. That order was made on 26 November 2015. By that order, the father is to have sole parental responsibility for the children, although there are some obligations cast on him by order 4 to inform the mother about certain things.
The children, by those orders, are to live with the father and they are to spend time with the mother in accordance with the arrangements set out in paragraphs 6, 7, 8, 9 and 10 of those orders. There are also some orders for telephone communication and the like.
Importantly, however, the time-spending arrangements, which on their face are limited to half of the school holidays and the like, are conditional upon the mother complying with another order set out in a further tranche of orders, order number 11. That order requires the applicant to complete a Focus on Kids course with X Counsellors and file a certificate of completion with the Court. Now, ordinarily that would not cause much problem, because it is often the case that the Court will make an order for parents, and my own practice is for both parents, to do a course or something similar to that because none of us know everything. All of us stand to be improved by further education, and that is often the case with parents who wish to litigate about their children in this place. So an order like that is commonplace.
However, the applicant says that she received some legal advice to the effect that if she completed that course it would carry with it certain connotations or concessions by her that she did not like. I am not so sure about the efficacy of the advice, but what it means is that she has never complied with order 11. That is what the applicant has told me. That means that the time-spending arrangements under the orders have never been engaged, and presumably it means that these children have not spent much time, if any at all, with the applicant pursuant to those orders. On any view of it, that is appalling. But there it is.
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.
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. That the applicant does not receive such information about her children is unfortunate. But I expect that, family law matters aside, there will be circumstances in which schools, or an educational authority, makes a determination not to provide information to one or other of a child’s parents. It is unfortunate, but there it is.
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.
The mother’s affidavit and written submissions are replete with references to perjury. I do not know what the position is in courts conducted by other judges, but for the applicant’s edification I do not tolerate perjury and I would be surprised any other judge would either. I cannot accept the applicant’s submission that another judge of this court has condoned and encouraged perjury. But that does not mean that I always know when it occurs. I have certainly made findings that parties have given untruthful evidence, but if I make such a finding that does not mean that I have power to punish somebody for it. The power to punish somebody for perjury is a matter for the criminal law, and s. 314(1), I think, of the Queensland Criminal Code deals with the offence of perjury. I think there may also be a Commonwealth equivalent and there are certainly equivalents in other states. There is also a common law offence of perjury in common law states where the common law applies.
The prosecution of somebody for committing perjury is a matter for police. Now, here, in the applicant’s affidavit, she says she has spoken to the police about this and the AFP says it is a matter for the courts. Well, ultimately, that is probably correct in the sense that the courts will deal with offenders who have been found guilty of perjury, but a criminal proceeding against somebody is not something that happens in this court. A criminal proceeding happens in criminal courts where parties are given the opportunity to have the offence, if it is indictable, tried by a jury.
So maybe the AFP were talking about courts in that sense, but to the extent that it might be suggested that this court has jurisdiction or power to punish offenders for perjury – or the Family Court, for that matter – the suggestion is wrong. That is of course, no solace to the applicant in this case who wants the father dealt with for all of the lies that she says he has been telling since at least 2015, if not earlier.
Now, all of that amounts to this, I think. The application for contravention that the mother 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.
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.
I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Jarrett. Associate:
Dated: 3 March 2021
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