Scott (No 2) - [2023] FedCFamC1A 184

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Scott (No 2) [2023] FedCFamC1A 184

Appeals from:
Munayallan & Scott (No 5) [2021] FedCFamC1F 284

Scott & Munayallan (No 12) [2023] FedCFamC1F 665

Appeal numbers: NAA 256 of 2023
NAA 258 of 2023

File number: SYC 59 of 2010

Judgment of: ALDRIDGE, AUSTIN & HARPER JJ

Date of judgment: 27 October 2023

Catchwords: FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – LEAVE TO APPEAL – Vexatious litigant – Where the applicant filed two applications in an appeal – Where the applicant requires leave to appeal under s 102QE of the Family Law Act 1975 (Cth) (“the Act”) – Where the provisions of s 102QE of the Act have not been complied with – Where the proposed appeals lack ostensible merit – Application dismissed.

Legislation:
Family Law Act 1975 (Cth) Pt VIII and Pt XIB, s 102QE and s 102QF

Federal Circuit and Family Court of Australia Act 2021 (Cth) s 28

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 13.13

Federal Court and Federal Circuit and Family Court of Australia Regulations 2022 (Cth) reg 4.02

Cases cited:
Gallo v Dawson (1990) 93 ALR 479; [1990] HCA 30

Harrell [2021] FamCAFC 119

Jackamarra v Krakouer and Anor (1998) 195 CLR 516; [1998] HCA 27

Scott [2023] FedCFamC1A 161

Spencer (No 2) [2023] FedCFamC1A 92

Spencer [2022] FedCFamC1A 131

Number of paragraphs: 33

Date of hearing: Determined on the papers in chambers

The Applicant: Litigant in person
ORDERS

NAA 256 of 2023
NAA 258 of 2023
SYC 59 of 2010

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION

BETWEEN:
MR SCOTT

Applicant

ORDER MADE BY:

ALDRIDGE, AUSTIN & HARPER JJ

DATE OF ORDER:

27 OCTOBER 2023

THE COURT ORDERS THAT:
1.The Application in an Appeal filed on 12 October 2023 in appeal no NAA 258 of 2023 is dismissed.
2.The Application in an Appeal filed on 18 October 2023 in appeal no NAA 256 of 2023 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 Scott (No 2) has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
ALDRIDGE, AUSTIN & HARPER JJ:

These reasons explain the dismissal of two Applications in an Appeal filed by the applicant on 12 October 2023 and 18 October 2023.
Background
The applicant and his former spouse were once engaged in protracted proceedings for the division of their property under Pt VIII of the

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 Scott (No 2)

Details

AGLC: Scott (No 2) [2023] FedCFamC1A 184
Case: [2023] FedCFamC1A 184
Decision Date: 27 October 2023

CaseChat Overview and Summary

The case of Scott (No 2) involved the applicant, Mr. Scott, who filed two applications for leave to appeal against a vexatious litigant injunction and final property settlement orders issued in his previous family law proceedings. The application was dismissed by the Federal Circuit and Family Court of Australia. The primary judge had concluded the financial division proceedings on 11 August 2023, and a vexatious litigant injunction had been imposed on the applicant on 21 December 2021, with the orders being amended on 23 February 2023. Mr. Scott sought leave to appeal both the vexatious litigant injunction and the final property settlement orders under section 102QE of the Family Law Act 1975 (Cth).

The court needed to decide whether Mr. Scott was entitled to leave to appeal the vexatious litigant injunction and the final property settlement orders. The court considered the compliance with section 102QE of the Act, the ostensible merit of the proposed appeals, and the timeliness of the applications. The court found that the applicant had not complied with the provisions of section 102QE of the Act and that the proposed appeals lacked ostensible merit. The court concluded that the applications did not meet the necessary criteria for leave to appeal.

The court dismissed both applications, finding that they were not in compliance with the requirements of section 102QE of the Family Law Act 1975 (Cth). The court held that the applications were vexatious and lacked merit. The court also noted that the applicant had not shown any exceptional circumstances that would warrant granting leave to appeal. The dismissal of the applications was upheld, and the applicant was not granted leave to appeal the vexatious litigant injunction or the final property settlement orders.

Orders

Orders of the court

NAA 256 of 2023

NAA 258 of 2023

SYC 59 of 2010

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

MR SCOTT

Applicant

ORDER MADE BY:

ALDRIDGE, AUSTIN & HARPER JJ

DATE OF ORDER:

27 OCTOBER 2023

THE COURT ORDERS THAT:

1. The Application in an Appeal filed on 12 October 2023 in appeal no NAA 258 of 2023 is dismissed.

2. The Application in an Appeal filed on 18 October 2023 in appeal no NAA 256 of 2023 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 two Applications in an Appeal filed by the applicant on 12 October 2023 and 18 October 2023.Background The applicant and his former spouse were once engaged in protracted proceedings for the division of their property under Pt VIII of the Family Law Act 1975 (Cth) (“the Act”), but that cause of action was concluded by final orders made by the primary judge on 11 August 2023. The applicant’s application to review the appeal registrar’s refusal to file his appeal from that judgment was dismissed on 22 September 2023 (Scott [2023] FedCFamC1A 161 at [25]–[35]). While the original financial cause was still pending, the primary judge made a vexatious litigant injunction against the applicant. The order was apparently made on 21 December 2021, though the sealed orders of the Court did not properly reflect the order until they were amended under the slip rule much later, apparently on or about 23 February 2023, notice of which the applicant did not receive until 27 February 2023 (Scott at [12], [17] and [18]). The applicant’s application for leave to appeal from the vexatious litigant injunction was summarily dismissed on 22 September 2023 (Scott at [17]–[24]). Now, by two more applications filed on 12 and 18 October 2023, the applicant seeks leave to appeal from both the vexatious litigant injunction and the final property settlement orders. The vexatious litigant injunction precludes the applicant from appealing from either it or the final property settlement orders until he obtains leave to do so under s 102QE of the Act. He also needs leave to appeal out of time in each instance. No leave to appeal under s 28(3) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (“the FCFCA Act”) and reg 4.02 of the Federal Court and Federal Circuit and Family Court of Australia Regulations 2022 (Cth) is required in either instance. The vexatious litigant injunction is a final order (Harrell [2021] FamCAFC 119 at [9]), as were the financial orders made on 11 August 2023.Vexatious litigant injunction The injunction against the applicant was relevantly made in these terms:1.Pursuant to s 102QE of the Family Law Act 1975 (Cth) (“the Act”) a vexatious proceedings order be made against the [applicant], born [date], and he is prohibited from instituting proceedings under the Act against or in relation to the wife, [name] born [date] or the children, [the eldest child], [born]; and [the youngest child], [born], without first having been granted leave to commence that proceeding pursuant to section 102QG of the Act.a. This vexatious proceeding order does not apply to:i.Any cost application of the [applicant] arising from these Orders and filed within the time prescribed under the Family Law Act 1975 (Cth) and r 12.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (”the current Rules”).ii.Any appeal from these Orders provided such appeal is filed within the time prescribed under r 13.03 of the current Rules or such other time as is permitted by order of the Full Court;iii.An application made by the [applicant] to be provided with a copy of the transcript of proceedings heard before [the primary judge]; andiv.The filing of a response or affidavit in reply by the [applicant].(As per the original)

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Appeals from:	Munayallan & Scott (No 5) [2021] FedCFamC1F 284 Scott & Munayallan (No 12) [2023] FedCFamC1F 665
Appeal numbers:	NAA 256 of 2023 NAA 258 of 2023
File number:	SYC 59 of 2010
Judgment of:	ALDRIDGE, AUSTIN & HARPER JJ
Date of judgment:	27 October 2023
Catchwords:	FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – LEAVE TO APPEAL – Vexatious litigant – Where the applicant filed two applications in an appeal – Where the applicant requires leave to appeal under s 102QE of the Family Law Act 1975 (Cth) (“the Act”) – Where the provisions of s 102QE of the Act have not been complied with – Where the proposed appeals lack ostensible merit – Application dismissed.
Legislation:	Family Law Act 1975 (Cth) Pt VIII and Pt XIB, s 102QE and s 102QF Federal Circuit and Family Court of Australia Act 2021 (Cth) s 28 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 13.13 Federal Court and Federal Circuit and Family Court of Australia Regulations 2022 (Cth) reg 4.02
Cases cited:	Gallo v Dawson (1990) 93 ALR 479; [1990] HCA 30 Harrell [2021] FamCAFC 119 Jackamarra v Krakouer and Anor (1998) 195 CLR 516; [1998] HCA 27 Scott [2023] FedCFamC1A 161 Spencer (No 2) [2023] FedCFamC1A 92 Spencer [2022] FedCFamC1A 131
Number of paragraphs:	33
Date of hearing:	Determined on the papers in chambers
The Applicant:	Litigant in person

ORDER MADE BY:	ALDRIDGE, AUSTIN & HARPER JJ
DATE OF ORDER:	27 OCTOBER 2023