Padgett

[2025] FedCFamC1A 140

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1) APPELLATE JURISDICTION

Padgett [2025] FedCFamC1A 140

Appeal from:

Orders of 14 July 2025

Appeal number:

NAA 357 of 2025

File number:

3906 of 2018

Judgment of:

AUSTIN J

Date of judgment:

8 August 2025

Catchwords:

FAMILY LAW – APPLICATION IN AN APPEAL – LEAVE TO APPEAL – Harmful proceedings order – Where the applicant seeks leave to appeal from a harmful proceedings injunction against her – Where several grounds of appeal are misconceived as they complain about earlier events in the proceedings – Where the complaints of denial of procedural fairness are incorrect – Where the applicant waived the complaint of bias by making no disqualification application to the magistrate – Where the proposed appeal lacks reasonable ground and is vexatious – Application dismissed.  

Legislation:

Family Law Act 1975 (Cth) Pt XIB, Div 1B, ss 102Q, 102QAB, 102QAC, 102QAE, 102QAF, 102QAG, 102QB, 102QF

Family Law Amendment Act 2023 (Cth)

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) Pt 5.3, r 13.38

Family Court Rules 2021 (WA) r 311

Cases cited:

Darley (No 4) [2023] FedCFamC1A 158

Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63

Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427; [2011] HCA 48

Padgett & Padgett (No 3) [2024] FedCFamC1A 175

Padgett & Padgett [2021] FCWA 59

Pencious & Searle (2017) FLC 93-805; [2017] FamCAFC 210

Vakauta v Kelly (1989) 167 CLR 568; [1989] HCA 44

Number of paragraphs:

60

Date of hearing:

Determined in chambers on the papers

Place:

Newcastle

The Applicant:

Litigant in person

ORDERS

NAA 357 of 2025
3906 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

MS PADGETT

Applicant

ORDER MADE BY:	AUSTIN J
DATE OF ORDER:	8 AUGUST 2025

THE COURT ORDERS THAT:

1.The Application in an Appeal filed on 4 August 2025 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 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Padgett has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

AUSTIN J:

1. These reasons explain the dismissal of an application for leave to appeal from orders made by a magistrate of the Magistrates Court of Western Australia on 14 July 2025.

   BACKGROUND

2. Proceedings between the parties under the Family Law Act 1975 (Cth) (“the Act”) were first commenced in 2018.

3. In March 2021, the Family Court of Western Australia made final parenting and property adjustment orders between the parties, following a hearing in which the applicant did not participate due to her procedural defaults (Padgett & Padgett [2021] FCWA 59). Relevantly, the orders provided for the respondent to have sole parental responsibility for the children and required them to live and spend an equivalent amount of time with each party. The applicant appealed from those orders, but she later discontinued it.

4. The applicant re-opened the parenting dispute with a fresh application in February 2022.

5. In November 2023, final parenting orders were made for a second time. The orders provided for the children to live with the respondent, for him to have sole parental responsibility for them, and for them to only communicate and spend time with the applicant when they wished. By that time the two children were aged 16 and 14 years respectively. The applicant sought an extension of time within which to bring an appeal from those orders, but the application was refused (Padgett & Padgett (No 3) [2024] FedCFamC1A 175).

6. In October 2024, the applicant again tried to institute fresh parenting proceedings, but her attempt failed. The principal registrar wrote to the applicant advising her:

   1.I am not prepared to accept the Form 1 [Initiating Application] for filing as the Child Related Proceeding are concluded and have been the subject of two unsuccessful appeals.

   2.        The Form 1 and Case Information Affidavit do not appear to include any new or fresh evidence of matters that were not before the Court previously.

   3.        I also note the age of the subject children and the comprehensive evidence that they do not wish to have any contact with the [applicant].

   The documents have been rejected and removed from the Court file…

   (Emphasis in original)

7. In February 2025, the applicant did successfully file a Form 1 – Initiating Application. Although the formal parts of the Application describe it as an application confined to re-opening the parenting cause and obtaining fresh interim and final parenting orders, the Application is accompanied by two documents described as “Minute of Final Orders” and “Minute of Interim Orders”. In the latter suite of proposed orders, the applicant seeks this relief:

   10.The [respondent] shall pay the [applicant] a lump-sum amount from the marital assets, pursuant to Section 79A, to be immediately allocated to fund the children’s therapy, living expenses and legal costs.

8. Plainly enough, the applicant also purports to seek financial relief under s 79A of the Act, varying the final financial orders made in March 2021.

9. Ironically, despite it being the applicant repeatedly moving the Court for relief, she also sought this vexatious litigant injunction against the respondent in her “Minute of Final Orders”:

   8.That the [respondent] be declared a vexatious litigant pursuant to Section 102QB of [the Act] and be prevented from filing any further documents or applications in this matter without the leave of the court.

10. The Form 1 – Initiating Application was subsequently listed for directions on 14 July 2025.

11. In the meantime, the mother filed two Applications in a Case, the first on 12 May 2025 and the second on 23 May 2025, in which she sought fresh parenting orders and injunctions in respect of the children, which claims for relief were similar to, but not identical with, the relief sought in her Form 1 – Initiating Application. The respondent filed Responses, opposing the applications and seeking an injunction against the applicant under s 102QAC of the Act. Those Applications and Responses were also listed to 14 July 2025.

12. The fresh proceedings were entertained by the magistrate on 14 July 2025, who made:

    (a)an injunction under s 102QAC of the Act, prohibiting the applicant from instituting proceedings under the Act without the grant of leave to do so under s 102QAG of the Act (Order 1); and

    (b)multiple procedural orders which:

    (i)require the notification of the respondent if the applicant brings an application under s 102QAE of the Act (Order 2);

    (ii)adjourn (to a date to be fixed) the respondent’s costs application, as contained within his Response filed on 14 July 2025 (Order 3);

    (iii)require the respondent to file and serve an affidavit in support of his costs application (Order 4);

    (iv)require the applicant to file and serve an affidavit in relation to the costs application and the delivery up of certain documents (Order 5); and

    (v)transfer the proceedings back to the Family Court of Western Australia from the Magistrates Court of Western Australia (Order 6).

13. On 4 August 2025, the applicant filed an Application in an Appeal seeking leave to appeal from all orders made by the magistrate on 14 July 2025.

14. The applicant also sought ancillary substantive and procedural relief, but that aspect of her application is incompetent unless she is permitted to prosecute the intended appeal. The only application presently entertained is that brought under s 102QAE of the Act for leave to appeal.

    LEGAL PRINCIPLES

15. Pt XIB of the Act was enacted by the Family Law Amendment Act 2023 (Cth) and became operative from 6 May 2024, the purpose of which was explained this way in the Explanatory Memorandum:

    319.…The purpose of this measure is to protect the respondent and/or children who are the subject of proceedings from the harmful impact of frequent and unnecessary applications filed by an applicant. This measure aims to limit systems abuse, which is a form of family violence that is prevalent in the family law system.

    320.This measure addresses a gap in the court’s powers to scrutinise the institution of further proceedings, cited in the case of Marsden & Winch (2013) 50 Fam LR 409. The ALRC Report found that the court’s existing vexatious proceedings and summary dismissal powers do not provide sufficient scope for courts to make appropriate orders in cases where one party oppresses the other by repetitive filing of applications and the serving of those applications on the other party.

16. The harmful proceedings order made against the applicant pursuant to s 102QAC(1) of the Act (Order 1) does not carve out any exception for appeals and so the injunction restraining her from bringing further proceedings without leave to do so catches both further original and appellate proceedings (Pencious & Searle (2017) FLC 93-805 at [77]–[88]).

17. The applicant therefore needs leave under Pt XIB of the Act to bring an appeal from any of the orders made by the magistrate on 14 July 2025.

18. When prosecuting an application under s 102QAE(2) of the Act for leave to institute further proceedings and thereby override the effect of the harmful proceedings injunction, it is obligatory for the applicant to file an affidavit containing certain evidence (s 102QAE(3)) and, absent substantial compliance with the requirements of s 102QAE(3) of the Act, the application may be dismissed (s 102QAF(1)).

19. The applicant’s affidavit states this is the first time she has sought leave under s 102QAE (thereby satisfying s 102QAE(3)(a)), but it remains is open to serious question whether she satisfactorily discloses all relevant facts known to her about the application (s 102QAE(3)(b)) because she says little about the long history of the litigation between the parties which led to the injunction being made against her. She has obviously complained to at least the Chief Judge and the National Anti-Corruption Commission about her dissatisfaction with the course of the family law proceedings. Nonetheless, this application will proceed to determination on the assumed premise that the applicant’s affidavit complies with s 102QAE(3) of the Act.

20. The application must be dismissed if the proposed further proceeding (in this case an appeal) falls within the definition of “vexatious proceedings” (s 102QAF(2)) or if the applicant fails to satisfy the Court the further proceedings are not vexatious (s 102QAG(1)). The distinction between the counterparts of those two provisions (s 102QF(2) and s 102QG(4)) was explained by the Full Court (Darley (No 4) [2023] FedCFamC1A 158 at [13]–[22]).

21. To ascertain whether s 102QAF(2) or s 102QAG(1) apply to mandate the dismissal of the application, the term “vexatious proceedings” is defined as follows in the Act (s 102Q(1)):

    “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.

    (Emphasis in original)

22. Sub-paragraph (c) of the definition makes clear that, if the proposed appeal in this instance is “without reasonable ground”, it is characterised as vexatious and the leave to bring the appeal pursuant to s 102QAE of the Act must be dismissed.

23. The applicant stated she does not want her application determined in the parties’ absence in accordance with r 13.38 and Pt 5.3 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth). Nevertheless, the application is determined in that fashion, as the Act permits (ss 102QAE(4), 102QAF(3) and 102QAF(4)).

    EVIDENCE

24. The applicant relied upon her affidavit filed on 4 August 2025 (including annexures).

25. Recourse to the Court record and the transcript of the ex tempore reasons given by the magistrate on 14 July 2025 is both permissible and justified.

    DISPOSITION

    Ambit of the intended appeal

26. The intended appeal lies from the orders made on 14 July 2025, yet all but one of those orders are not “judgments” from which an appeal validly lies.

27. Orders 2–6 inclusive are exclusively procedural orders which do not impinge in any way upon the applicant’s substantive or procedural rights. In fact, those orders were made for the applicant’s benefit, as the magistrate perceived it would be procedurally unfair to expect her to meet the respondent’s costs application, notice of which she only received that day.

28. An appeal only lies from Order 1, as it is a final order (s 102QAC(6)) taking the form of an injunction trammelling the applicant’s right to bring proceedings under the Act when she likes.

29. The grounds of appeal by which it is intended to challenge Order 1 are set out within the draft Notice of Appeal annexed to the applicant’s affidavit. They are pleaded as follows:

    1.Erred by Judicial Officer’s Procedural Unfairness and Denial of Natural Justice

    a.The vexatious declaration was made without a proper hearing, oral submissions, or engagement with my filed response materials.

    b.The hearing was prematurely concluded, and key evidence was excluded from consideration.

    2.        Erred by Implied Dismissal Without Written Orders

    a.The oral judgment indicated that my parenting and property applications were unsuccessful, yet the written orders do not clearly state dismissal.

    b.This ambiguity obstructs my right to appeal and creates confusion about the status of my claims.

    3.Erred by Misuse of Vexatious Declaration to Pre-empt Substantive Applications.

    The vexatious declaration was used not only to limit future filing, but to halt current s79A property and parenting matters, despite the procedural obligation to test each application on merit. The decision relied on dismissal of the property claim without hearing submissions and was used to justify termination of child-related claims without assessing parenting evidence or children’s best interests.

    4.        Erred by Fabricated Findings and Transcript Irregularities.

    Multiple transcriptions – spanning trial, interlocutory, and rescue hearings – have been altered or redacted, omitting communications with the Chief Judge and requests to participate. The oral reasons for judgment diverged materially from written orders. The transcript dated 6 March 2025, 26 March 2021 trial is among several identified as altered, raising concerns about the integrity of the record and violations of the accurate record principle.

    5.        Erred by Apprehended Bias and Strategic Manipulation.

    a.The conduct of the judicial officer reflects a pattern of bias, delay, and procedural obstruction, including vague orders and refusal to clarify rulings.

    6.Erred in fact and Law by Disregard for the Children’s Development, Safety, and Health.

    The judicial officer relied on the children’s age to justify removing contact with the mother, despite evidence that they remain under control as hostages, lacking independence, and exposed to criminal influences – including drug distribution and educational suppression. Health vulnerabilities such as serious allergies, anemia serious health conditions were ignored, despite documented concerns. The court failed to apply section 60CC of [the Act] regarding best interests of the children.

    7.Erred in fact and law by Mischaracterisation of [the applicant’s] Capacity and Protective Strategies.

    The court dismissed the [applicant’s] proven capacity to support the children through therapeutic and legal means, including qualifications in hypnotherapy, mental health, and law. Prior documented success in stabilising the children’s development during transitions was excluded from consideration, demonstrating a disregard for both protective potential and rehabilitation evidence.

    8.        Reliance on Unsubstantiated Assumptions and Suppression of Evidence.

    The court accepted unsupported claims that the children did not wish to spend time with the [applicant], ignoring extensive evidence indicating repeated attempts by the children to reconnect – obstructed by the [respondent] through coercion, police misuse, and emotional manipulation. The judicial officer also failed to acknowledge the [respondent’s] documented history of family violence, fraud, and disregard for court orders.

    (Applicant’s Affidavit filed 4 August 2025, p.15–16)

    Grounds 4, 5, 6, 7 and 8

30. These grounds are misconceived because they comprise complaints about events at earlier unspecified stages of the proceedings. The applicant must understand this is an application for leave to appeal from only Order 1 made on 14 July 2025, not the vehicle by which to ventilate multiple complaints about the entirety of the litigation.

31. To the extent the applicant alleges bias in respect of the magistrate’s conduct that day as being part of a broader pattern (Ground 5), these observations are pertinent.

32. The applicant sought this order as an interim order under cover of her Form 1 – Initiating Application filed in February 2025:

    11.      A new judicial officer be assigned to this case.

33. Being part of an application freshly filed in February 2025, the disqualification application could only logically have pertained to the judicial officer who last handled the litigation in November 2023. It could not possibly relate to the magistrate in whose hands the litigation did not rest at the time of filing.

34. No disqualification application was pursued by the applicant before the magistrate on 14 July 2025. Nor could it have been because the applicant wanted the magistrate to proceed and hear her application for fresh interim parenting orders. Given no disqualification application was made to the magistrate that day, the applicant waived her complaint of bias (Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427 at [76] and [79]; Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at 344, 357 and 360; Vakauta v Kelly (1989) 167 CLR 568 at 577–579 and 586–588). She cannot make the complaint for the first time now.

    Ground 1

35. This ground alleges the applicant’s deprivation of procedural fairness at the hearing conducted on 14 July 2025. It is contended Order 1 was made without a proper hearing, apparently because the magistrate: concluded the hearing prematurely; excluded key evidence; did not engage with the oral submissions; and did not engage with the applicant’s evidence.

36. The complaints are demonstrably incorrect.

37. With respect to the evidence, the applicant filed seven affidavits affirmed on 10 October 2024, 20 February 2025, 10 May 2025, 23 May 2025, 16 June 2025, 1 July 2025, and 14 July 2025.

38. So far as can be discerned, the applicant was permitted to rely upon all those affidavits. The magistrate said this:

    [Her Honour]: I should point out that there are multiple applications and affidavits filed by the applicant. During the course of this morning’s hearing she sought to tender another bundle of documents. So all of these documents, all of the material filed by both parties is before the Court for the purpose of this interim determination …

    (Transcript 14 July 2025, p.4 lines 6–11) (Emphasis added)

1. Once all the evidence upon which the applicant wanted to rely was before the Court, her complaint the magistrate did not “engage” with it is no more than a statement of her bare belief. It is not objectively verifiable.

2. The magistrate first had to determine whether to dismiss the pending parenting applications and restrain the prosecution of more in the future, as the respondent wanted (in his two Responses filed on 2 July 2025 and 14 July 2025). Only if those applications were dismissed did the magistrate then need to determine the multiple applications for new parenting orders and injunctions sought by the applicant (in her Form 1 Application filed on 24 February 2025 and the two Applications in a Case filed on 12 May 2025 and 23 May 2025).

3. The parties conducted the case as they wished, so they were both heard. The proceedings were then stood down until 3.30 pm for the magistrate to deliberate and deliver ex tempore judgment. The Court re-convened at 3.43 pm and judgment was then pronounced. The hearing was not prematurely concluded.

4. Ground 1 has no reasonable prospects of success.

   Ground 2

5. This ground highlights the dissonance between the orders made and the reasons given by the magistrate.

6. The reasons for judgment reveal the magistrate intended to achieve two outcomes: first, the dismissal of the applications brought by the applicant to try and disturb the existing final parenting orders; and secondly, to prevent any further proceedings being instituted by her under the Act without an anterior grant of leave to do so.

7. The second objective was consistent with the intent of Pt XIB, Div 1B of the Act, authorising the use of judicial power to restrain proceedings which are deemed to be “harmful”.

8. The allied intent to dismiss the pending parenting applications brought by the applicant is clear from these passages of the magistrate’s oral reasons:

   HER HONOUR: I have reached the conclusion, having regard to the very protracted and complex history of this matter, that this fresh application filed by the applicant has no reasonable prospects of success, and further, that it does constitute a harmful proceeding as defined by [the Act]…

   …

   HER HONOUR: I’m satisfied that to allow these proceedings to continue would be harmful…

   …

   HER HONOUR: So the cumulative effect of all the harm that the proceedings can cause the children and the [applicant] and the [respondent] persuade me that the time has come where the Court does need to make an order that will, subject to any appeal, bring the child-related proceedings to an end.

   (Transcript 14 July 2025, p.5 lines 22–27, p.6 lines 22–23, p.8 lines 5–9)

   (Emphasis added)

9. Yet despite intending to dismiss the applicant’s pending applications, no such order was made. By its terms, Order 1 only prohibits the applicant from instituting more proceedings under the Act in the future. It does not dismiss the extant parenting applications.

10. The applicant correctly observes the error, but it does not follow that she is correct to say within Ground 2:

    (b)This ambiguity obstructs my right to appeal and creates confusion about the status of my claims.

    (Applicant’s Affidavit filed 4 August 2025, p.15)

11. The error poses no obstruction to her right of appeal, though her confusion can be easily cured without the need to prosecute an appeal.

12. The failure of the magistrate to make an order expressly dismissing the parenting applications (contained within the applicant’s Form 1 - Initiating Application filed in February 2025 and the two Applications in a Case filed in May 2025) was merely an oversight which may be conveniently rectified by the parties approaching the magistrate and requesting invocation of the slip rule pursuant to either r 311(1)(e) or r 311(1)(h) of the Family Law Rules 2021 (WA) (“the WA Rules”) to make such a dismissal order.

13. Such an order would be consistent with the magistrate’s reasons to this effect:

    I have reached the conclusion, having regard to the very protracted and complex history of this matter, that this fresh application filed by the applicant has no reasonable prospect of success…

    (Transcript 14 July 2025, p.5 lines 22–25) (Emphasis added)

14. By having found the mother’s applications had “no reasonable prospect of success”, they were amenable to summary dismissal (s 102QAB(2) and s 102QB(3)).

15. Alternatively, the finding the mother’s applications had “no reasonable prospect of success” is akin to finding the proceedings were instituted “without reasonable ground”, thereby meeting the definition of “vexatious proceedings” (defined in s 102Q), enabling a vexatious proceedings dismissal order (s 102QB(1)(a) and s 102QB(2)(a)).

    Ground 3

16. This ground complains inferentially of the denial of procedural fairness, which has already been addressed under Ground 1, in so far as it relates to the parenting dispute.

17. However, there are other aspects to this complaint. It is alleged, first, the magistrate intended to dismiss not only the applicant’s pending applications to re-open the parenting cause, but also her pending application to re-open the financial cause under s 79A of the Act; and secondly, to the extent the magistrate intended to dismiss the pending application to re-open the financial cause, the parties were denied the chance to lead evidence or make submissions about it.

18. The complaint is misconceived because the magistrate evidently only entertained and intended to dismiss the applications brought by the applicant to re-open the parenting cause. Her Honour said this:

    [Her Honour]: So the dispute concerns yet a further application made by the [applicant], which was filed on 24 February 2025, in which the [applicant] sought final and interim orders, effectively to completely overturn a series of orders that have been made by this Court in relation to two children who are now 17, about to turn 18 years of age, and 15 years of age. There is a very long history of litigation with multiple applications, multiple hearings and previous final decisions that have been delivered by the Court in respect of the child-related proceedings.

    The proceedings have also been subject of a number of appeals instituted by the applicant. So the application recently filed by the [applicant] is a further attempt on her part to reopen the child-related proceedings after a very long history of protracted and highly conflictual proceedings concerning the care arrangements for the two children. The [applicant’s] application sought initially that there should be an ex parte hearing, that the previous orders should be suspended, that the Court should issue a recovery order so that the children were removed from the [respondent’s] care and placed in the [applicant’s] care, that the [applicant] be authorised to change one of the children’s schools, that the [applicant] have sole parental responsibility, that the children spend no time with the [respondent], that the [respondent] be restrained from contacting any individuals engaged in drug use or criminal activity or allowing the children to do so, that she be able to collect the children’s personal belongings, and that the [respondent] pay her a lump sum, to be allocated to fund the children’s therapy, living expenses and legal costs.

    (Transcript 14 July 2025, p. 2 line 25 to p.3 line 5) (Emphasis added)

19. The magistrate expressly intended not to obstruct the applicant’s continued prosecution of the financial cause, saying this:

    [Her Honour]: …In addition to the child-related proceedings, the [applicant] has brought an application under section 79A alleging fraud and concealment of assets. The [applicant] has been highly critical of the court processes and the decision which was delivered as a result of an undefended child-related and property proceedings by [another judge]. So those proceedings are on foot and remain to be dealt with in addition to the multiple interim applications that the mother has filed in the child-related proceedings.

    (Transcript 14 July 2025, p.7 line 44 to p.8 line 3) (Emphasis added)

20. Order 1 precludes the applicant from bringing any further proceedings under the Act without leave, but her application for financial relief under s 79A of the Act was an integral part of the Form 1 – Initiating Application she filed on 24 February 2025 and so its continued prosecution does not infringe Order 1.

21. Nonetheless, the applicant will need to be disabused of the notion she can pursue her claim for relief under s 79A of the Act on only an interim basis without an overarching application for such final financial relief (r 77(1) of the WA Rules).

    Conclusion

22. None of the grounds of appeal have any reasonable prospect of success, so the intended appeal is necessarily defined as a “vexatious proceeding”, meaning the application for leave to appeal from the orders made on 14 July 2025 must be dismissed.

I certify that the preceding sixty (60) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Austin.

Associate:

Dated:       8 August 2025