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:

1. 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”).

2. Then, on 21 February 2024, the primary judge made a vexatious litigant injunction against the applicant pursuant to s 102QB(2)(b) of the Act (“the second order”). The injunction was expressed in broad terms, precluding the applicant from instituting any further proceedings under the Act against the respondent without the grant of leave pursuant to s 102QE of the Act, which includes appellate proceedings (Pencious & Searle (2017) FLC 93-805 at [77]–[88]).

3. On 3 April 2024, the applicant filed two Applications in an Appeal seeking the grant of leave pursuant to s 102QE of the Act to file appeals from the first order (“the first application”) and the second order (“the second application”).

4. These reasons explain the dismissal of both applications.

   Background

5. 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.

6. 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.

7. 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.

8. 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.

9. The elder child attained majority in October 2021, after which time no orders could be made in respect of him (s 65H(1)(a)).

10. 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)).

11. 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.

12. 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.

13. 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

14. 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]).

15. 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)

16. By reason of sub-paragraph (c) of the definition, it is enough for the proposed proceeding to be characterised as vexatious if it lacks “reasonable ground”.

17. When prosecuting an application for leave under s 102QE(2) of the Act, it is obligatory for the applicant to file an affidavit in support containing certain details (s 102QE(3)). The application may be dismissed if the supporting affidavit does not substantially comply with the requirements of s 102QE(3) of the Act (s 102QF(1)).

18. The Act permits applications for the grant of leave under s 102QE of the Act to be determined on the papers in chambers (s 102QF(3) and s 102QF(4)), as these applications are, even though the applicant indicated her preference for the applications to be heard in open court.

    The first application

19. The first application seeks leave to appeal from the first order – the dismissal of the contempt application brought by the applicant against the respondent. In support of the application, the applicant relies upon her affidavit filed on 3 April 2024.

20. The applicant deposed to past proceedings she has instituted in purported compliance with s 102QE(3) of the Act. Without pausing to consider the accuracy of that evidence and whether the applicant faithfully complied with the obligation cast by s 102QE(3) of the Act, it is convenient to move straight to the question of whether the intended appeal is vexatious.

21. The reasons for judgment delivered by the primary judge reveal that the contempt application was dismissed because the applicant failed to make out a prima facie case against the respondent in respect of any of the 13 separate counts of contempt (at [135]).

22. The applicant read two affidavits in support of the contempt application, but she was not cross-examined on her evidence. The prosecution case was conducted on the papers and the finding of no prima facie case followed upon submissions being made by the parties at the close of the prosecution case (at [4]–[7] and [52]).

23. The 13 counts of contempt concerned alleged conduct of the respondent in the period between 2016 and 2022. All acts of contempt supposedly concerned breaches of the interim parenting orders made in June 2015 (at [54]), even though such orders were superseded by those made by the State court in September 2016 (at [15]) and December 2017 (at [17]) and by federal courts under the Act in December 2018 (at [19]) and May 2022 (at [38]).

24. The orders made in June 2015 provided for the parties’ children to live with the applicant and, broadly speaking, the respondent’s alleged contempt supposedly flowed from his non-compliance with those orders. However, the children have lived with the respondent since September 2016 pursuant to the orders made by the State court under State child welfare legislation and, upon the expiry of the State orders, pursuant to orders made under the Act.

25. The essence of the applicant’s contempt case was summarised by the primary judge thus:

    55.The Applicant’s case is that Orders made in the [State court] were not registered in the Family Court. As a consequence, it is her case that the Children’s Court Orders are subject to the Orders made under the Act.

    56.As part of this argument, the Applicant says that the Respondent is in contempt of the Act Orders because he should not have agreed for the children to be placed in his care by the Chief Executive of the Department.

    57.The Applicant contends that the Respondent was aware of the Orders of 18 June 2015 and as such knew that he was breaching court orders in having the children live with him. She contends that this is a flagrant breach of the Orders made under the Act, and it is appropriate that the Respondent be dealt with under the contempt provisions of the Act.

    58.The Applicant contends that the Children’s Court Orders only operate in [the State they were made] and once the children moved to New South Wales, the Children’s Court Orders ceased to be operational and the Orders made under the Act were the operative orders.

    59.The Applicant contends that because of the invalidity of the Children’s Court Orders in New South Wales, the Respondent had no right to have the children in his care, and had no right to receive any payment or funding from government departments.

26. In the reasons for judgment, the primary judge expressly referred to s 69ZK of the Act and explained how the State orders enjoyed primacy over the federal orders made in June 2015 and, once the State orders expired, the orders made under the Act in December 2018 prevailed (at [68]–[70]).

27. Although the contempt application was supposedly predicated upon the respondent’s discrete breaches of the June 2015 orders, the verbose counts made far wider allegations. They alleged the respondent’s misconduct by colluding in corruption and perjury (Counts 1, 2, 3, 5, 6, 7, 8 and 11), by referring to a judge as “an idiot” (Count 4), by kidnapping and detaining the children (Counts 9, 10 and 13) and by breaching s 121 of the Act (Count 12).

28. The applicant explained the premise of her intended appeal from the first order in her affidavit. In summary, it comprises complaints that the primary judge:

    (a)erred by failing to stop the respondent’s lawyers acting for him in the contempt proceedings;

    (b)was actually biased against her, by treating the respondent’s lawyers more favourably than her at the hearing;

    (c)erred by finding no prima facie case was established against the respondent; and

    (d)erred by making directions to facilitate the determine the respondent’s “fictitious” application for a vexatious litigant injunction against her.

29. All purported grounds of the intended appeal are spurious and therefore “vexatious” within the meaning of s 102Q(1) of the Act.

30. As to the first complaint, the primary judge had neither the power nor the reason to preclude the respondent’s lawyers from appearing for him, which the primary judge explained in answer to the same complaint raised by the applicant at first instance when delivering reasons to explain the vexatious litigant injunction (at [44], [50] and [51]). Litigants have a right of audience in court represented by a lawyer (r 3.08(1) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)).

31. As to the second complaint, no disqualification application was made by the applicant to the primary judge at the hearing and so she must be taken to have waived her objection (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).

32. The third complaint is no more than a bare contention that the primary judge should have found a prima facie case established against the respondent on all 13 counts, but the proposed appeal could not be sustained simply by repeating the arguments put and rejected at first instance. No attempt is made by the applicant to explain or demonstrate how some error was made by the primary judge in reaching the decision.

33. The fourth complaint is baseless. The application for a vexatious litigant injunction against the applicant was not “fictitious” as the respondent made the application orally, having foreshadowed it in a Case Outline document filed in advance of the contempt hearing. This same argument was raised by the applicant at first instance and its rejection was explained in the reasons published for the vexatious litigant injunction (at [14], [43] and [47]–[49]).

34. The proposed appeal from the first order is “without reasonable ground” and therefore “vexatious”, in which event the application for leave to appeal under s 102QE(2) of the Act must be dismissed.

35. It therefore becomes unnecessary to consider the separate question of whether leave should be granted to the applicant to bring the appeal from the first order out of time, since the time for filing such an appeal expired on 16 February 2024.

    The second application

36. The second application seeks leave to appeal from the second order – the vexatious litigant injunction made against the applicant. In support of the application, the applicant relies upon her second affidavit filed on 3 April 2024, which is identical to the first.

37. Again, it is convenient to pass straight to the vexation of the proposed appeal without pausing to consider the applicant’s compliance with s 102QE(3) of the Act. Because the affidavit read in support of the second application is identical to the affidavit read in support of the first application, it is directed entirely to the premises of the proposed appeal from the first order. The applicant does not reveal the basis upon which she intends to challenge the second order, if permitted to appeal. Absent some explanation of the contended error which supposedly vitiates the second order, the intended appeal from it must be “without reasonable ground” and is therefore “vexatious”. Accordingly, the application for leave to appeal under s 102QE(2) of the Act must be dismissed.

38. Again, it is unnecessary to consider the separate question of whether leave should be granted to the applicant to bring the appeal from the second order out of time, since the time for filing such an appeal expired on 20 March 2024.

    Disposition

39. The two applications are dismissed.

I certify that the preceding thirty-nine (39) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Austin.

Associate:

Dated:       11 April 2024