Pitman - [2024] FedCFamC1A 51

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Pitman [2024] FedCFamC1A 51

Appeal from:
Pitman & Hynes (No 2) [2024] FedCFamC2F 206

Pitman & Hynes [2024] FedCFamC2F 22

Appeal numbers: NAA 79 of 2024
NAA 80 of 2024

File number: WOC 772 of 2011

Judgment of: AUSTIN J

Date of judgment: 11 April 2024

Catchwords: FAMILY LAW – APPLICATION IN AN APPEAL – LEAVE TO APPEAL – Vexatious litigant – Where the applicant filed two applications seeking leave to appeal – Where the first application relates to the order dismissing her contempt application against the father – Where the second application relates to a vexatious litigant injunction against her – Where the applicant requires leave to appeal under s 102QE of the Family Law Act 1975 (Cth) (“the Act”) – Where all purported grounds of appeal are spurious and therefore vexatious within the meaning of s 102Q(1) of the Act – Leave refused – Applications dismissed.

Legislation:
Family Law Act 1975 (Cth) Pt VII, ss 65H, 69ZK, 102Q, 102QB, 102QE, 102QF, 102QG, 112AP

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 3.08

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

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

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

Number of paragraphs: 39

Date of hearing: Determined in chambers on the papers

The Applicant: Litigant in person

ORDERS

NAA 79 of 2024
NAA 80 of 2024
WOC 772 of 2011

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION

BETWEEN:
MS PITMAN

Applicant

ORDER MADE BY:

AUSTIN J

DATE OF ORDER:

11 APRIL 2024

THE COURT ORDERS THAT:
1.The Application in an Appeal filed in Appeal NAA 79/2024 on 3 April 2024 is dismissed.
2.The Application in an Appeal filed in Appeal NAA 80/2024 on 3 April 2024 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).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Pitman has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
AUSTIN J:

On 19 January 2024, a judge of the Federal Circuit and Family Court of Australia (Division 2) dismissed an Application-Contempt brought by the applicant against the respondent pursuant to s 112AP of the Family Law Act 1975 (Cth) (“the Act) (“the first order”).
Then, on 21 February 2024, the primary judge made…

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 Pitman

Details

AGLC: Pitman [2024] FedCFamC1A 51
Case: [2024] FedCFamC1A 51
Decision Date: 11 April 2024

CaseChat Overview and Summary

This case involved an appeal by Ms Pitman, who sought leave to appeal two separate decisions made in the Federal Circuit and Family Court of Australia. The first appeal concerned the dismissal of her contempt application against the respondent, and the second related to an injunction declaring her a vexatious litigant. Both applications were dismissed by Justice Austin. The legal issues before the court included whether Ms Pitman’s applications were vexatious and whether she was entitled to leave to appeal despite the vexatious litigant injunction.

The court examined the nature of the proceedings and the grounds of appeal. It found that Ms Pitman's proposed grounds of appeal were spurious and did not have reasonable prospects of success. Consequently, the court held that her applications were vexatious within the meaning of the Family Law Act 1975. Given the vexatious nature of the proposed appeals, the court determined that Ms Pitman did not satisfy the criteria for leave to appeal under section 102QE of the Act. The court emphasised that an application for leave to appeal could only proceed if the proposed further proceedings were not vexatious. As the proposed grounds of appeal were spurious, the court found the applications to be vexatious and dismissed them.

The court ordered that both applications for leave to appeal, filed on 3 April 2024, be dismissed. This decision effectively upheld the lower court's orders dismissing Ms Pitman's contempt application and the vexatious litigant injunction against her. The dismissal of the appeals meant that Ms Pitman could not circumvent the lower court's decisions through further litigation.

Orders

Orders of the court

NAA 79 of 2024

NAA 80 of 2024

WOC 772 of 2011

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

MS PITMAN

Applicant

ORDER MADE BY:

AUSTIN J

DATE OF ORDER:

11 APRIL 2024

THE COURT ORDERS THAT:

1. The Application in an Appeal filed in Appeal NAA 79/2024 on 3 April 2024 is dismissed.

2. The Application in an Appeal filed in Appeal NAA 80/2024 on 3 April 2024 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).

Background

Background to the litigation

These reasons explain the dismissal of both applications.Background Proceedings between the parties in respect of their two children were first commenced in 2011. Even though the children attained their majority in 2021 and 2022 respectively, the parties are still embroiled in litigation. In June 2015, interim parenting orders were made under the Act requiring the children to live with the applicant. However, in May 2016, a State child welfare agency separately commenced proceedings in respect of the children under State child welfare legislation in a State court. Pursuant to orders made by the State court, the children were placed in the residential care of the respondent in September 2016, where they remained thereafter. The orders of the State court expired in December 2018, after which time the children’s affairs were governed by interim orders made in December 2018 by a judge of the Federal Circuit and Family Court of Australia (Division 1). Those orders required the children to live with the respondent and directed that they spend no physical time with the applicant. The final trial of the parenting proceedings, fixed initially in 2020 and again in 2021, was vacated by reason of the health restrictions imposed during the COVID-19 pandemic. The elder child attained majority in October 2021, after which time no orders could be made in respect of him (s 65H(1)(a)). In May 2022, the existing interim orders in respect of the younger child were converted to final orders. She then attained her majority in December 2022, at which point the orders ceased to apply (s 65H(2)). Despite the exhaustion of jurisdiction under Pt VII of the Act, two contempt applications filed by the applicant against the respondent in April 2022 and May 2022 remained live. The first of those applications was entertained by the primary judge in October 2023 and was dismissed by her Honour on 19 January 2024. The prospect of a vexatious litigant injunction being made against the applicant was ventilated during the contempt proceedings. Consequently, directions were made for the parties to file submissions on the topic and the respondent’s application for the injunction was then decided on the papers in chambers. The injunction was made against the applicant on 21 February 2024. The applicant now wants to circumvent the operation of the vexatious litigant injunction and appeal from both the dismissal of her contempt application and the vexatious litigant injunction.Legal principles An application brought under s 102QE of the Act for leave to institute further proceedings and thereby override a vexatious litigant injunction must be dismissed if the proposed further proceedings fall within the definition of “vexatious proceedings” (s 102QF(2)) or if the applicant fails to satisfy this Court that it is not vexatious (s 102QG(4)). The distinction between those two sub-sections was explained by the Full Court (Darley (No 4) [2023] FedCFamC1A 158 at [13]–[22]). For the purpose of ascertaining whether s 102QF(2) or s 102QG(4) apply to govern the outcome of the application, the term “vexatious proceedings” is defined as follows (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)

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Appeal from:		Pitman & Hynes (No 2) [2024] FedCFamC2F 206 Pitman & Hynes [2024] FedCFamC2F 22
Appeal numbers:		NAA 79 of 2024 NAA 80 of 2024
File number:	WOC 772 of 2011
Judgment of:	AUSTIN J
Date of judgment:	11 April 2024
Catchwords:	FAMILY LAW – APPLICATION IN AN APPEAL – LEAVE TO APPEAL – Vexatious litigant – Where the applicant filed two applications seeking leave to appeal – Where the first application relates to the order dismissing her contempt application against the father – Where the second application relates to a vexatious litigant injunction against her – Where the applicant requires leave to appeal under s 102QE of the Family Law Act 1975 (Cth) (“the Act”) – Where all purported grounds of appeal are spurious and therefore vexatious within the meaning of s 102Q(1) of the Act – Leave refused – Applications dismissed.
Legislation:	Family Law Act 1975 (Cth) Pt VII, ss 65H, 69ZK, 102Q, 102QB, 102QE, 102QF, 102QG, 112AP Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 3.08
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 Pencious & Searle (2017) FLC 93-805; [2017] FamCAFC 210 Vakauta v Kelly (1989) 167 CLR 568; [1989] HCA 44
Number of paragraphs:	39
Date of hearing:	Determined in chambers on the papers
The Applicant:	Litigant in person

ORDER MADE BY:	AUSTIN J
DATE OF ORDER:	11 APRIL 2024