FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Ridge [2024] FedCFamC1A 181
Appeal from: Ridge & Hurley [2024] FedCFamC2F 1174 Appeal number: NAA 252 of 2024 File number: ADC 2379 of 2023 Judgment of: AUSTIN J Date of judgment: 14 October 2024 Catchwords: FAMILY LAW – APPEAL – Application in an Appeal – Leave to commence proceedings – Where the primary judge dismissed the applicant’s application to vary final parenting orders – Where the applicant requires leave to appeal in circumstances where the primary judge made orders restraining him from bringing any further proceedings under the Family Law Act 1975 (Cth) (“the Act”) – Where all 91 grounds of appeal lack reasonable prospects of success and are therefore vexatious within the meaning of s 102Q(1) of the Act – Leave refused – Application dismissed. Legislation: Family Law Act 1975 (Cth) Pts VII, XIB, ss 60CC, 64B, 65D, 65DAAA, 69ZN, 69ZP, 69ZQ, 69ZX, 102NA, 102Q, 102QAB, 102QAC, 102QAE, 102QAF, 102QAG
Family Law Amendment Act 2023 (Cth)
Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 143, 190, 192
Cases cited: Bennett v Bennett (1991) FLC 92-191; [1990] FamCA 148
Darley (No 4) [2023] FedCFamC1A 158
G v H (1994) 181 CLR 387; [1994] HCA 48
Hedlund & Hedlund (2021) FLC 94-065; [2021] FedCFamC1A 84
Kowalski v MMAL Staff Superannuation Fund Pty Ltd (2009) 178 FCR 401; [2009] FCAFC 117
Pencious & Searle (2017) FLC 93-805; [2017] FamCAFC 210
Rice v Asplund (1979) FLC 90-725; [1979] FamCA 80
Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247
Spencer v The Commonwealth (2010) 241 CLR 118; [2010] HCA 28
Number of paragraphs: 61 Date of hearing: Determined in chambers on the papers The Applicant: Litigant in person ORDERS
NAA 252 of 2024
ADC 2379 of 2023FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR RIDGE
Applicant
ORDER MADE BY:
AUSTIN J
DATE OF ORDER:
14 OCTOBER 2024
THE COURT ORDERS THAT:
1.The Application in an Appeal filed on 30 September 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).
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 a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
AUSTIN J:
On…
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CaseChat Overview and Summary
The case involves Mr. Ridge as the applicant and his ex-wife as the respondent, with the dispute centering around parenting orders concerning their child. The Federal Circuit and Family Court of Australia, Appellate Division, heard Mr. Ridge's application for leave to appeal the primary judge's decision. The primary judge had dismissed Mr. Ridge's application to vary final parenting orders, imposed a restraint order on him from bringing further proceedings, and varied the original orders. The court was required to determine whether Mr. Ridge's 91 grounds of appeal had reasonable prospects of success, as leave to appeal would only be granted if the appeal was not vexatious under section 102Q(1) of the Family Law Act 1975 (Cth).
The court analyzed Mr. Ridge's affidavits, which primarily argued the merits of his appeal rather than strictly complying with the statutory requirements. Despite this, the application was considered substantively due to Mr. Ridge's absence during the hearing. The court scrutinized each ground of appeal to ascertain if they lacked reasonable prospects of success, which would render them vexatious. Many grounds of appeal centred on procedural fairness, arguing that Mr. Ridge was not adequately informed about the final determination of the parenting dispute and was denied the opportunity to present additional evidence. The court found that Mr. Ridge was aware of the respondent's application and its potential implications, including the final determination of the dispute and the prohibition on further proceedings.
After thorough consideration, the court concluded that all 91 grounds of appeal lacked reasonable prospects of success. The court found that Mr. Ridge was adequately informed about the respondent's application and had the opportunity to be heard on it. Consequently, the application for leave to appeal was dismissed.
The court ordered that the application in an appeal filed by Mr. Ridge on 30 September 2024 be dismissed. This decision ensures that the primary judge's orders remain in place, barring Mr. Ridge from bringing further proceedings and varying the existing parenting orders.
The court analyzed Mr. Ridge's affidavits, which primarily argued the merits of his appeal rather than strictly complying with the statutory requirements. Despite this, the application was considered substantively due to Mr. Ridge's absence during the hearing. The court scrutinized each ground of appeal to ascertain if they lacked reasonable prospects of success, which would render them vexatious. Many grounds of appeal centred on procedural fairness, arguing that Mr. Ridge was not adequately informed about the final determination of the parenting dispute and was denied the opportunity to present additional evidence. The court found that Mr. Ridge was aware of the respondent's application and its potential implications, including the final determination of the dispute and the prohibition on further proceedings.
After thorough consideration, the court concluded that all 91 grounds of appeal lacked reasonable prospects of success. The court found that Mr. Ridge was adequately informed about the respondent's application and had the opportunity to be heard on it. Consequently, the application for leave to appeal was dismissed.
The court ordered that the application in an appeal filed by Mr. Ridge on 30 September 2024 be dismissed. This decision ensures that the primary judge's orders remain in place, barring Mr. Ridge from bringing further proceedings and varying the existing parenting orders.
Orders
Orders of the court
NAA 252 of 2024
ADC 2379 of 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION
BETWEEN:
MR RIDGE
Applicant
ORDER MADE BY:
AUSTIN J
DATE OF ORDER:
14 OCTOBER 2024
THE COURT ORDERS THAT:
1. The Application in an Appeal filed on 30 September 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).
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.
Background
Background to the litigation
These reasons explain the determination of the application.Background The applicant and the respondent married in 2013. Their only child was born in 2015 and was only an infant when the parties finally separated in November 2015. The applicant first commenced proceedings in respect of the child under Pt VII of the Act in January 2016. Those proceedings were concluded by orders made in May 2020 following a lengthy trial. The orders provided for the child to live with the respondent, for the respondent to have sole parental responsibility for the child, and for the child to spend time with the applicant for six hours on alternate Sundays (at [10], [12] and [155]). The orders were premised upon findings the applicant had perpetrated family violence upon the respondent and there was still high conflict between the parties (at [25], [32], [36] and [155]). The applicant appealed from those orders in June 2020 (at [42]), but the appeal was abandoned in December 2020 (at [48]) and his belated attempt to re-instate it was dismissed in September 2023 (at [54]). In any event, in July 2020, within two months of the orders being made, a professional contact service withdrew its supervisory services from the parties (at [19] and [40]) and the child has not seen the applicant since then (at [6], [15], [66] and [155]). In late 2020, not long after the child ceased spending time with the applicant, he was convicted of offences and sentenced to imprisonment for approximately two years (at [18]). In mid-2023, following his release, the applicant filed an application initiating fresh proceedings within original jurisdiction under Pt VII of the Act (at [13]) seeking to revise the orders made in May 2020. On a final basis, he proposed to share parental responsibility for the child and for her to live with him for equal time (at [20]). On an interim basis, he proposed the child spend time and communicate with him once each week (at [13] and [20]). The respondent joined issue in November 2023. She too proposed revision of the May 2020 orders. On a final basis, she sought to restrain the applicant’s involvement in the child’s life. On an interim basis, she sought suspension of the May 2020 orders in so far as they made provision for the child to spend time with the applicant (at [17]). In December 2023, given the lengthy hiatus of any interaction between the child and the applicant, the primary judge suspended the orders made in May 2020 requiring the child to spend time with the applicant (at [59]). Then, in May 2024, following the commencement of Pt XIB of the Act, the respondent brought an application to achieve three aims (at [20]–[23]), being: first, the summary dismissal of the applicant’s application under Pt VII of the Act; secondly, a harmful proceedings order to restrain him from bringing any fresh proceedings; and thirdly, the variation of the May 2020 orders in the manner she proposed. The primary judge heard the respondent’s application in June 2024, at which time the respondent was legally represented but the applicant was not. Judgment was reserved and delivered on 30 August 2024. Relevantly, the primary judge:(a)summarily dismissed the applicant’s parenting application filed in May 2023, pursuant to s 102QAB of the Act (Order 1);(b)restrained the applicant from bringing further proceedings against the mother under the Act, pursuant to s 102QAC of the Act (Order 2);(c)discharged the former orders made in May 2020 (Order 3); (d)made fresh parenting orders which provided for:(i)the respondent to have sole decision-making authority for the child (Order 4);(ii)the child to live with the respondent (Order 5);(iii)the child not to spend any time with the father before her 14th birthday, after which time she can decide herself (Order 6); and(iv)the regulation of the parties’ conduct (Orders 7–10); and(e)otherwise dismissed all other outstanding applications (Order 11).
Evidence
Evidence Before The Court
For clarity then, the task at hand is quite different from the tasks undertaken by the primary judge. When making Order 1, the primary judge had to be satisfied the applicant had no reasonable prospect of prosecuting his parenting application (s 102QAB(2)). When making Order 2, his Honour had to be satisfied there were reasonable grounds to believe the respondent, the child, or both of them would likely suffer harm if the applicant brings fresh proceedings in the future (s 102QAC). In making Orders 3–11, his Honour had to be satisfied they were made in the child’s best interests (s 60CA and s 65AA). However, it only now needs to be determined whether the applicant’s intended appeal from those orders is “without reasonable ground”. If so, leave to appeal must be refused.The evidence The two affidavits filed by the applicant are effectively submissions to vindicate the merit of his intended appeal. It may be doubted such evidence substantially complies with the obligation caste by s 102QAE(3) of the Act. Nonetheless, since the application is being determined in the applicant’s absence, it will not be dismissed for any technical infraction but rather considered on a substantive basis. Attention may turn then to the ostensible merit of the proposed appeal to determine whether it lacks “reasonable ground”.The judgments The orders made by the primary judge effectively represent three separate judgments, being:(a)Order 1 – the summary dismissal of the applicant’s application to vary the May 2020 orders on the premise that he had no reasonable prospect of prosecuting his application (s 102QAB(2));(b)Order 2 – the applicant’s restraint from bringing any further proceedings under the Act on the premise that the respondent, the child, or both of them would suffer harm if he instituted more proceedings in the future (s 102QAC(1), the nature of which judgment was also summary rather than substantive; and(c)Orders 3–11 – parenting orders determining the respondent’s application to vary the May 2020 orders (s 64B(2) and s 65D(2)), as set out within her Response filed in November 2023, though it is not explicitly clear from the reasons whether the nature of this judgment was summary or substantive.Procedural fairness Many of the intended grounds of appeal allege the applicant’s deprivation of procedural fairness in one way or another (Grounds 2, 4, 25, 26, 52, 57, 58, 59, 60, 61, 62, 64, 65, 66, 67, 68, 69, 75, 79, 80, 85, 86, 87 and 88). In so far as the grounds can be conceived to properly engage the doctrine of procedural fairness, they essentially assert: the applicant was not given notice about, and so he was unaware that, the parties’ parenting dispute under Pt VII of the Act might be finally determined; and the parenting dispute should not have been finally determined without him having the chance to adduce more evidence and cross-examine witnesses. The applicant was certainly on notice of the respondent’s application, as it was filed and served before it was heard in June 2024. The application made plain the respondent’s intention to seek orders against the applicant under Pt XIB of the Act, dismissing his application which started the proceedings in May 2023, and stopping him from bringing any more proceedings. The application also made plain the respondent’s intention to procure an immediate variation of the May 2020 orders, the grant of which part of her application would finalise the Pt VII dispute.
Decision
Reasons for decision
The two affidavits filed by the applicant are effectively submissions to vindicate the merit of his intended appeal. It may be doubted such evidence substantially complies with the obligation caste by s 102QAE(3) of the Act. Nonetheless, since the application is being determined in the applicant’s absence, it will not be dismissed for any technical infraction but rather considered on a substantive basis. Attention may turn then to the ostensible merit of the proposed appeal to determine whether it lacks “reasonable ground”.The judgments The orders made by the primary judge effectively represent three separate judgments, being:(a)Order 1 – the summary dismissal of the applicant’s application to vary the May 2020 orders on the premise that he had no reasonable prospect of prosecuting his application (s 102QAB(2));(b)Order 2 – the applicant’s restraint from bringing any further proceedings under the Act on the premise that the respondent, the child, or both of them would suffer harm if he instituted more proceedings in the future (s 102QAC(1), the nature of which judgment was also summary rather than substantive; and(c)Orders 3–11 – parenting orders determining the respondent’s application to vary the May 2020 orders (s 64B(2) and s 65D(2)), as set out within her Response filed in November 2023, though it is not explicitly clear from the reasons whether the nature of this judgment was summary or substantive.Procedural fairness Many of the intended grounds of appeal allege the applicant’s deprivation of procedural fairness in one way or another (Grounds 2, 4, 25, 26, 52, 57, 58, 59, 60, 61, 62, 64, 65, 66, 67, 68, 69, 75, 79, 80, 85, 86, 87 and 88). In so far as the grounds can be conceived to properly engage the doctrine of procedural fairness, they essentially assert: the applicant was not given notice about, and so he was unaware that, the parties’ parenting dispute under Pt VII of the Act might be finally determined; and the parenting dispute should not have been finally determined without him having the chance to adduce more evidence and cross-examine witnesses. The applicant was certainly on notice of the respondent’s application, as it was filed and served before it was heard in June 2024. The application made plain the respondent’s intention to seek orders against the applicant under Pt XIB of the Act, dismissing his application which started the proceedings in May 2023, and stopping him from bringing any more proceedings. The application also made plain the respondent’s intention to procure an immediate variation of the May 2020 orders, the grant of which part of her application would finalise the Pt VII dispute. That the applicant may have focussed his attention on the first part of the respondent’s application rather than on the second part is neither the fault of the primary judge nor the respondent. The respondent’s application was being heard in its entirety and he was given the chance to be heard about it in its entirety, so the question arises as to whether his alleged surprise at the Pt VII dispute being determined contemporaneously was nonetheless a material deprivation of procedural fairness which warrants the proposed appeal being allowed and the dispute re-heard (Stead v State GIO (1986) 161 CLR 141 at 145).
Ratio Decidendi
Legal Principle Established
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