Harrell
[2021] FamCAFC 119
•15 July 2021
FAMILY COURT OF AUSTRALIA
Harrell [2021] FamCAFC 119
Appeal from: Harrell & Hancock [2021] FamCA 132 Appeal number(s): NOA 19 of 2021 File number(s): BRC 1164 of 2014 Judgment of: AINSLIE-WALLACE, WATTS & AUSTIN JJ Date of judgment: 15 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) (“the Act”) – Where the applicant requires the grant of leave to bring any fresh proceedings under Pt VII of the Act – Where the grant of leave to appeal from an order made under s 102QB(2) of the Act by a judge of the Family Court of Australia order should be decided by the Full Court consistent with s 94AA(1) of the Act – Where the applicant did not satisfy the requirements of s 102QE(3) of the Act – Where the applicant did not discharge his onus of demonstrating the proposed appeal is not vexatious – Where the application was pursued without reasonable ground and must be dismissed Legislation: Family Law Act 1975 (Cth) Pts VII, X, XIB, ss 94AA, 102Q, 102QB, 102QE, 102QF, 102QG
Family Law Regulations 1984 (Cth) reg 15A(1)
Cases cited: Harrell & Hancock-Harrell [2019] FamCAFC 177
Harrell & Hancock-Harrell [2020] FamCA 583
Harrell & Hancock [2021] FamCA 132
Pencious & Searle (2017) FLC 93-805; [2017] FamCAFC 210
Division: Appeal Division Number of paragraphs: 24 Date of hearing: 15 July 2021 Place: Brisbane (via video-link) The Applicant: Litigant in person ORDERS
NOA 19 of 2021
BRC 1164 of 2014APPEAL DIVISION OF THE FAMILY COURT OF AUSTRALIA
BETWEEN: MR HARRELL
Applicant
ORDER MADE BY:
AINSLIE-WALLACE, WATTS & AUSTIN JJ
DATE OF ORDER:
15 JULY 2021
THE COURT ORDERS THAT:
1.Leave to appeal from the orders made by the Family Court of Australia on 5 February 2021 is refused and the Application in an Appeal filed on 1 March 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 Harrell has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
AUSTIN J:
The applicant father seeks leave to appeal from orders made by a judge of the Family Court of Australia on 5 February 2021 under Pt XIB of the Family Law Act 1975 (Cth) (“the Act”) dismissing his pending application for parenting orders in respect of his son and prohibiting him from bringing any further application for parenting orders without leave, which orders represented the culmination of protracted litigation.
The child who is the object of the applicant’s interest is nearly 10 years of age. Proceedings relating to him were first instituted when he was an infant. Final parenting orders were made to conclude the litigation in September 2016 and the applicant’s appeal from those orders was dismissed (Harrell & Hancock-Harrell [2019] FamCAFC 177); as were numerous other appeals he brought from antecedent interim parenting orders. The final orders required the child to live with his mother, vested the mother with sole parental responsibility for him, and only permitted the child to spend time with the applicant under supervision at a contact centre – at least until the applicant could adduce evidence of his stable mental health and that he no longer posed any risk of harm to either the child or the mother.
In November 2019 – only a month after his appeal from the final orders was dismissed – the applicant filed fresh proceedings seeking orders enabling the child to spend substantial amounts of unsupervised time with him. The application was heard in June 2020 and dismissed in July 2020 on grounds that the applicant was unable to establish any material changed circumstances (Harrell & Hancock-Harrell [2020] FamCA 583). There was no appeal from that order.
Then, in October 2020 – only three months after his last application was dismissed – the applicant filed another application seeking orders in relation to the child in substantially the same terms. The application was heard and dismissed by the primary judge in February 2021 (Harrell & Hancock [2021] FamCA 132). Relevantly, the orders made by the primary judge were in these terms:
1.That the father’s Application filed 7 October 2020 be dismissed.
2.That the Applicant, [name] must not, without first obtaining leave of a Court having jurisdiction under the Family Law Act 1975, institute proceedings for parenting orders in relation to the child, [name] born [date].
The orders were made pursuant to the power reposing in s 102QB(2) of the Act, in response to the mother’s application rather than on the primary judge’s own initiative (s 102QB(3)).
On 1 March 2021, the applicant filed an Application in an Appeal seeking leave to appeal from the orders made on 5 February 2021, which is the application now before us for consideration.
Procedure
The Act expressly contemplates an application being made for the grant of leave to institute fresh proceedings to circumvent the effect of a vexatious proceedings order (s 102QE(2)).
Unless the Pt XIB injunction expressly carves out and exempts appeals from it, the injunction operates to restrain the commencement of any fresh proceedings, including an appeal from the injunction itself (Pencious & Searle (2017) FLC 93-805 at [77]–[88]).
An appeal from an injunction made against a litigant under s 102QB(2) of the Act, without any express appeal exemption, may only be brought with leave granted under Pt XIB of the Act
(s 102QG), but does not require an additional grant of leave under Pt X of the Act because the order is final (s 102QB(5)) and not a “prescribed decree” (s 94AA; reg 15A(1) of the Family Law Regulations 1984 (Cth)). Conversely, if the injunction expressly preserves the litigant’s right of appeal from it, no leave to appeal is required under either Pt X or Pt XIB of the Act.
The situation is different in respect of appeals from orders which either dismiss (s 102QF) or grant (s 102QG) applications for leave to institute proceedings contrary to the terms of an existing Pt XIB injunction, because such orders are prescribed decrees (reg 15A(1)(b)) and therefore require the grant of leave under both Pt X and Pt XIB of the Act.
When leave is required under Pt X of the Act to appeal from any prescribed decree made by a judge of the Family Court of Australia or a judge of a State or Territory Supreme Court, including when the decree is one made under either s 102QF or s 102QG of the Act, the application for leave must be determined by this Court (s 94AA(1)).
When leave is required under Pt X of the Act to appeal from a decree made by a judge of the Federal Circuit Court of Australia or a magistrate of the Magistrates Court of Western Australia, including when the decree is one made under either s 102QF or s 102QG of the Act, the application for leave may be determined either by this Court or by a single judge of the Family Court of Australia (s 94AA(1)).
In this instance, the intended appeal lies from orders made by the primary judge pursuant to the power found in s 102QB(2) – not s 102QF or s 102QG of the Act. The right of appeal from the subject orders was not expressly exempted from their operation and so the applicant’s proposed appeal requires the grant of leave pursuant to only Pt XIB of the Act.
But unlike in respect of the leave which is required under Pt X of the Act, no statutory provision prescribes by whom the grant of leave under Pt XIB should be decided when the proposed fresh proceedings take the form of an appeal from a s 102QB(2) order. Even if the appealed order is made by a judge of the Family Court of Australia, as is the situation here, nothing prevents the application for leave to appeal being entertained by another single judge of the Family Court of Australia. For consistency, it would be better if the pattern established by s 94AA(1) of the Act is employed and so, accordingly, this Court should decide the question.
Disposition
An applicant under s 102QE(2) of the Act seeking the grant of leave to prosecute any fresh proceedings must file an affidavit in conformity with s 102QE(3) of the Act, which provides:
(3) The applicant must file an affidavit with the application that:
(a)lists all the occasions on which the applicant has applied for leave under this section; and
(b)lists all other proceedings the applicant has instituted in any Australian court or tribunal, including proceedings instituted before the commencement of this section; and
(c)discloses all relevant facts about the application, whether supporting or adverse to the application, that are known to the applicant.
In support of his application for leave to bring fresh proceedings in the form of an appeal from the two orders made in February 2021, the applicant filed an affidavit on 1 March 2021 saying merely this:
1. Annexure 1 is my Notice of Appeal
2. I have not applied for leave under this section before
3. I have instituted an appeal of criminal conviction in the QLD Court of Appeal
(As per the original)
As can be seen, the affidavit does not come close to satisfying the conjunctive requirements of s 102QE(3) of the Act, in which case we may simply dismiss the application (s 102QF(1)). In the exercise of discretion, there are compelling reasons why we would resort to that power and dismiss the application forthwith.
In an email sent to the applicant on 27 May 2021, the appeal registrar confirmed to the applicant that she had already specifically drawn to his attention the contents of s 102QE(3) of the Act, so he was well aware of the evidence he was required to adduce. The appeal registrar also confirmed in the same email that his application for leave may be dismissed if his affidavit evidence does not substantially comply with the statutory requirements. The applicant chose not to file a supplementary affidavit and so, inferentially, his failure to adduce the mandatory evidence must have been wilful.
The applicant should not think his application is dismissed only for procedural irregularity. Its dismissal would, in any event, be compelled if the proposed appeal is vexatious (s 102QF(2)), for which purpose the definition of “vexatious proceedings” is very widely drawn (s 102Q). Proceedings are vexatious if they are pursued “without reasonable ground”. Here, the applicant did not try to submit that his proposed appeal was pursued on reasonable grounds, because he could not have done so persuasively.
The final orders made in September 2016 set out the conditions under which the nature of the child’s interaction with the applicant would be re-considered under Pt VII of the Act and yet, following the dismissal of his appeal from those orders, his successive applications for more orders in relation to the child have been made without due regard to those conditions. In July 2020, his application was dismissed for lack of evidence of any changed circumstances. Then, in October 2020, he brought substantially the same application when the circumstances could hardly have changed in the intervening three months. The applicant did adduce in evidence a psychologist’s letter concerning his mental health, after two brief consultations in September 2020, but the primary judge squarely addressed the lack of probative value which could be reposed in that letter.
The application to this Court, brought only one month after the dismissal of the last application in February 2021, does not try to address the lack of probative evidence. On the scant available evidence, this application is pursued by the applicant without reasonable ground, thereby making it vexatious, and it must therefore be dismissed (s 102QF(2)). At the very least, the applicant has not discharged his onus of demonstrating the proposed appeal is not vexatious, in which case his application for leave to bring the appeal cannot be granted (s 102QG(4)).
In my view, an order should be made in these terms:
Leave to appeal from the orders made by the Family Court of Australia on 5 February 2021 is refused and the Application in an Appeal filed on 1 March 2021 is dismissed.
WATTS J:
I agree with the reasons given by Austin J and the orders proposed by his Honour.
AINSLIE-WALLACE J:
I too agree with the reasons given by Austin J and the order of the Court therefore will be:
(1)Leave to appeal from the orders made by the Family Court of Australia on 5 February 2021 is refused and the Application in an Appeal filed on 1 March 2021 is dismissed.
I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Ainslie-Wallace, Watts & Austin. Associate:
Dated: 16 July 2021
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