SCVG
[2020] FamCAFC 147
•12 June 2020
FAMILY COURT OF AUSTRALIA
| SCVG | [2020] FamCAFC 147 |
| FAMILY LAW – APPLICATION IN AN APPEAL – LEAVE – Application for leave governed by ss 102QE, 102QF and 102QG of the Family Law Act 1975 (Cth) – Where the applicant requires the grant of leave to bring any fresh proceedings relating to Part VII of the Family Law Act 1975 (Cth) and also the grant of leave to appeal from the order made by the primary judge – Where the applicant disputes that leave to file his intended appeal is actually required because the original order was made pursuant to s 118 (repealed in 2018), not s 102QB, of the Family Law Act 1975 (Cth) – Where the source of power for the original order, which had prospective effect, could only have been Part XIB of the Family Law Act 1975 (Cth) – Where the statutory test for “vexatious proceedings” is applied – Where the applicant’s intended proceedings are without reasonable grounds – Where the applicant is unable to establish his entitlement to the grant of leave to bring fresh proceedings – Leave refused – Where it is unnecessary for the Full Court to separately consider whether the applicant should additionally have leave under s 94AA of the Family Law Act 1975 (Cth) to appeal from the primary judge’s order – Application dismissed. |
| Access to Justice (Federal Jurisdiction) Amendment Act 2012 (Cth) Family Law Regulations 1984 (Cth) reg 15A |
| Batistatos v Roads & Traffic Authority of New South Wales (2006) 226 CLR 256; [2006] HCA 27 Goldsmith v Sperrings Ltd [1977] 1 WLR 478 Medlow & Medlow (2016) FLC 93-692; [2016] FamCAFC 34 Minister for Immigration and Multicultural and Indigenous Affairs v B (2004) 219 CLR 365; [2004] HCA 20 Pencious & Searle (2017) FLC 93-805; [2017] FamCAFC 210 R v Carroll (2002) 213 CLR 635; [2002] HCA 55 SCVG [2020] FamCA 194 SCVG & KLD [2015] FamCA 110 Secretary, Department of Health & Community Services v JWB and SMB (Marion’s Case) (1992) 175 CLR 218; [1992] HCA 15 Williams v Spautz (1992) 174 CLR 509; [1992] HCA 34 |
| APPLICANT: | Mr SCVG |
| FILE NUMBER: | SYC | 4380 | of | 2008 |
| APPEAL NUMBER: | EAA | 55 | of | 2020 |
| DATE DELIVERED: | 12 June 2020 |
| PLACE DELIVERED: | Newcastle |
| PLACE HEARD: | In chambers |
| JUDGMENT OF: | Strickland, Ainslie-Wallace & Austin JJ |
| HEARING DATE: | Heard by way of written submissions |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 27 March 2020 |
| LOWER COURT MNC: | [2020] FamCA 194 |
REPRESENTATION
| THE APPLICANT: | Self-represented |
Orders
The Application in an Appeal filed on 8 May 2020 is dismissed.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym SCVG has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EAA 55 of 2020
File Number: SYC 4380 of 2008
| Mr SCVG |
Applicant
REASONS FOR JUDGMENT
Introduction
On 27 February 2015, a judge of the Family Court of Australia made an order against the applicant in these terms:
…
(7)Pursuant to s 118 of the Family Law Act 1975, the [applicant] is restrained from bringing any application under the Family Law Act relating to the two children named in these orders without leave of a Judge of the Family Court of Australia.
…
Nearly five years later, on 30 January 2020, the applicant filed an Application in a Case seeking leave to commence fresh proceedings in relation to his two children under Part VII of the Family Law Act 1975 (Cth) (“the Act”).
The leave application was heard by another judge of the Family Court of Australia and, on 27 March 2020, it was dismissed by an order in these terms:
(1)The application for leave to commence proceedings in relation to the two children… is refused and dismissed.
The applicant tried to appeal from that order by filing a Notice of Appeal on 24 April 2020, but it was rejected by the Appeals Registry. When alerted by the Appeals Registrar to the need for the antecedent grant of leave to bring the appeal, the applicant filed an Application in an Appeal and supporting affidavit on 8 May 2020 seeking such leave.
For the reasons which follow, leave should be refused.
The need for leave
In order to prosecute his intended appeal, the applicant requires the grant of leave in two respects, governed by two different tests.
First, under the terms of the injunction made on 27 February 2015, the applicant requires leave to bring any proceedings at all under the Act in respect of the children and the intended appeal would itself constitute the institution of proceedings under the Act in relation to the children.
Secondly, he also requires leave to appeal from the order made on 27 March 2020.
Leave to institute proceedings
The original order made on 27 February 2015, impinging the applicant’s right to bring proceedings under the Act in respect of the children as and when he thinks appropriate, was made to restrain future vexatious proceedings.
The power to make injunctions in that style is governed by Part XIB and, more specifically, s 102QB of the Act.
Part XIB was inserted into the Act, with effect from 11 June 2013, upon the enactment of the Access to Justice (Federal Jurisdiction) Amendment Act 2012 (Cth). Simultaneously, s 118 of the Act was amended.
As at February 2015, when the injunction was made, s 118 of the Act provided:
118 Frivolous or vexatious proceedings
The court may, at any stage of proceedings under this Act, if it is satisfied that the proceedings are frivolous or vexatious:
(a) dismiss the proceedings; and
(b) make such order as to costs as the court considers just.
As can be seen from its terms, this provision was framed to regulate the dismissal of pending proceedings, considered to be frivolous or vexatious.
Section 118 of the Act was later repealed and replaced by ss 45A(4) and 45A(6), in like terms, with effect from 1 September 2018, upon enactment of the Family Law Amendment (Family Violence and Other Measures) Act 2018 (Cth).
By comparison, Part XIB of the Act introduced a more comprehensive regime of regulation extending to both litigants and litigation. Its provisions are directed to the control of individual litigants, and not merely their pending litigation, who have the demonstrated propensity to frequently bring vexatious proceedings, enabling the prevention of their commencement of future litigation. Section 102QE of the Act requires that any litigant restrained by such an injunction must first obtain leave to institute further proceedings.
In this instance, the applicant disputes that he actually requires leave to institute an appeal because he believes the original order which impedes his institution of fresh proceedings was not made pursuant to s 102QB, but rather under the now repealed s 118 of the Act, in which event the requirement for leave imposed by s 102QE of the Act is inapplicable.
The order made against the applicant in February 2015 does indeed declare that it is made “[p]ursuant to s 118 of the [Act]”, but that was plainly a mistake because the applicant’s proposal in respect of the children was entertained and ultimately dismissed on its merits by the suite of orders made in February 2015. His application for parenting orders at that time was not dismissed as vexatious in reliance upon s 118 of the Act. The injunction was directed to future litigation instituted by the applicant, not his application then under consideration. The source of power for the injunction, which only had prospective effect, could only have been Part XIB of the Act, and in particular s 102QB, not s 118 of the Act.
The orders made in February 2015 required the children to live with the mother, vested the mother with sole parental responsibility for the children, and declared that the children must not spend any face-to-face time with the applicant, but did enable him to communicate with the children. The injunction restrained the applicant from bringing any future application under the Act in respect of the children without the grant of leave.
The injunction made in February 2015 was not then and is not now a nullity merely because it mistakenly recites its reliance upon s 118 instead of s 102QB of the Act as the source of its power.
The Family Court of Australia is constituted as a superior court of record (s 21(2) of the Act) and, as such, its orders are final and binding unless and until set aside on appeal or pursuant to prerogative writ (Minister for Immigration and Multicultural and Indigenous Affairs v B (2004) 219 CLR 365 at 393). There was no appeal from the injunction made in February 2015 and it has not been quashed by prerogative writ, so it remains valid and enforceable.
The operation of the injunction is unaffected by its erroneous reference to s 118 of the Act in its preamble. The judge who made the injunction did not delve into the legal premise for it when the order was made, since his Honour simply made it with the parties’ consent (SCVG & KLD [2015] FamCA 110 at [316]). In doing so, his Honour did not mistakenly apply the test under s 118 instead of the test imposed by s 102QB of the Act, in which event the injunction was not infected by an error of law.
The preamble to the injunction is capable of severance by use of the slip rule and the remainder of the order is just as efficacious if read in these terms:
Pursuant to s 118 of the Family Law Act 1975,the [applicant] is restrained from bringing any application under the Family Law Act relating to the two children named in these orders without leave of a Judge of the Family Court of Australia.(Strikethrough emphasis added)
Since s 102QB of the Act was the source of power for the injunction, leave is required to institute any fresh proceedings under the Act which would have the effect of circumventing the injunction.
The taking of any step or the making of an application to start an appeal is itself defined in s 102Q(1) of the Act as a form of fresh proceedings (par (a) of the definition of “institute”), the institution of which is caught by Part XIB (Pencious & Searle (2017) FLC 93-805 at [77]–[88]) and, since the proposed appeal is from an order which prevents another application being made in relation to the children without leave, it is caught by the terms of the February 2015 injunction.
Therefore, leave is required to bring the appeal, such grant of leave being governed by ss 102QE, 102QF and 102QG of the Act.
Leave to appeal
Supposing the applicant can establish grounds for the grant of leave to institute proceedings under Part XIB of the Act, so as to satisfy the terms of the February 2015 injunction, he still separately needs leave to appeal from the order made by the primary judge on 27 March 2020.
The order made on 27 March 2020 refused the applicant leave to bring fresh proceedings in respect of the children under the Act because he failed to satisfy his Honour of the requirements stipulated by ss 102QF and 102QG of the Act (SCVG [2020] FamCA 194 at [18]–[21], [40]–[41]).
Any appeal from an order made pursuant to either of those provisions requires the grant of leave (s 94AA(1) of the Act; reg 15A(1)(b) of the Family Law Regulations 1984 (Cth)).
The grant of such leave under s 94AA of the Act is governed by established principles. While the discretion is unfettered, the grant of leave ordinarily requires the applicant to show that the decision at first instance is attended by sufficient doubt to warrant appellate scrutiny and, additionally, substantial injustice would result if leave were refused, supposing the decision at first instance to be wrong (Medlow & Medlow (2016) FLC 93-692 at [44]–[57]).
Should leave be granted to institute proceedings?
When seeking leave to bring any proceedings under the Act, ostensibly caught by the February 2015 injunction, the applicant must file an affidavit containing certain specified information (s 102QE(3)). The applicant’s affidavit filed on 8 May 2020 purports to do so and, on its face, appears substantially compliant (s 102QF(1)).
The applicant’s application may be determined in chambers (s 102QF(4)) without an oral hearing (s 102QF(3)). Given the applicant expressly sought in his Application in an Appeal that the application for leave be determined on the papers in the absence of the parties, it is.
The application must be dismissed if the intended proceedings are vexatious proceedings (s 102QF(2)). Alternatively, leave may be granted only if satisfied that the proceedings are not vexatious proceedings (s 102QG(4)). The applicant bears the burden of proving the intended proceedings are not vexatious.
The Act defines “vexatious proceedings” widely (s 102Q(1)). Relevantly, the definition includes proceedings which are pursued without reasonable ground or those which are an abuse of process.
The appeal the applicant now wants to bring would challenge the refusal of leave for him to bring fresh proceedings in relation to his children. His underlying application in respect of the children was multi-faceted. The primary judge noted (SCVG [2020] FamCA 194) that the applicant sought interim orders for the children to immediately begin spending time with him, when they had not done so for more than seven years, and final orders for him to have sole parental responsibility for the children and for them to live with him (at [1], [3], [25] and [26]).
Presently, the eldest child is an adult and no longer the subject of jurisdiction under the Act. The youngest child will soon be 16 years of age.
The children lived with their mother under the parenting orders made in February 2015 until her untimely death in July 2019. The mother appointed her siblings (Mr Draper and Ms Draper) as the children’s guardians under her last will and testament and the children apparently now live with or among members of the extended maternal family.
As the parenting orders made in February 2015 did not make any provision for what would happen to the children upon the mother’s death, the Act permits the applicant, as the surviving parent, to apply for fresh parenting orders (s 65K(3)), but the exercise of that right is contingent upon the applicant being granted leave to apply, commensurately with the terms of the February 2015 injunction.
The applicant contended s 65K(3) of the Act “arguably” affords him an absolute right to bring further proceedings under the Act in relation to the children, but that is not correct. The February 2015 injunction, made under the provisions of Part XIB of the Act, overlays the provisions of Part VII of the Act.
What then is the underlying purpose of the first-instance proceedings the applicant wishes to bring under Part VII of the Act? According to the applicant’s evidence, there are dual purposes.
First, he wants parental responsibility for the youngest child conferred upon him so that he may prosecute, on her behalf, proceedings in another jurisdiction to challenge her omission as a beneficiary under the deceased mother’s will, which he expressed in his affidavit in these terms:
…
The decisive reason I have filed this application is that [the mother] has passed away and the younger child… has no one with parental responsibility in circumstances where she has been given no substantive inheritance in her mother’s Will, her whole estate being left to [the mother’s] brother and sister to deal with as they see fit including paying it all to themselves…
Accordingly, I have challenged the Will in the Supreme Court on the children’s behalf but am not seeking anything for myself…
…
… By my Supreme Court application I am litigating to claim for the children (not for myself) their rightful inheritance by challenging the validity of the Will and via a family provision claim…
(As per the original)
Secondly, he wants parental responsibility for the youngest child conferred upon him so he can unilaterally make decisions for her during the remainder of her minority, which he expressed in these terms:
… I am seeking what I genuinely believe is in [the youngest child’s] best interest even at cost and inconvenience to me, for example giving her the options to complete her schooling at her current school and spending time with her grandmother, and being prepared to relocate to [a city] to facilitate her school friendships.
(As per the original)
From the applicant’s evidence it is manifest that his principal objective is to bring the proceedings in relation to the youngest child under Part VII of the Act, to obtain parental responsibility for her for the collateral purpose of facilitating his prosecution of separate testamentary proceedings in a different jurisdiction as her litigation guardian.
The circumstances in which curial proceedings amount to an abuse of process cannot be exhaustively defined and minds may legitimately differ as to whether proceedings do constitute an abuse (R v Carroll (2002) 213 CLR 635 at 657). Indeed, the considerations differ according to whether the litigation in question is civil or criminal in nature (Batistatos v Roads & Traffic Authority of New South Wales (2006) 226 CLR 256 (“Batistatos”) at 264–265, 316).
It is accepted as being plainly abusive of civil process to institute proceedings for an improper purpose (Batistatos at 267), of which there are many examples, but which include the use of the proceedings for the predominant or substantial purpose of obtaining some collateral advantage rather than for the purpose for which the proceedings are designed and exist (Williams v Spautz (1992) 174 CLR 509 at 522, 528–529, 532 and 536–537).
In Goldsmith v Sperrings Ltd [1977] 1 WLR 478 at 503 (which decision was relied upon as authoritative by the High Court of Australia in Williams v Spautz, relevantly at 521–522, 529 and 536), it was said:
… if it can be shown that a litigant is pursuing an ulterior purpose unrelated to the subject matter of the litigation and that, but for his ulterior purpose, he would not have commenced proceedings at all, that is an abuse of process…
While the applicant’s immediate purpose in bringing the Part VII litigation is to secure an order vesting him with parental responsibility for the youngest child, being an order within the scope of power wielded by the Family Court of Australia, the applicant admits he has an ulterior motive for pursuing an order in those terms. He called it the “decisive” reason for bringing the proceedings. His pursuit of the Part VII order for the predominant and ulterior motive of prosecuting other civil litigation in the youngest child’s supposed interest converts the intended Part VII proceedings into an abuse of process.
That conclusion can be tested pragmatically in this way. There is no need for the applicant to prosecute the parallel civil proceedings on behalf of the youngest child and so no need for him to acquire exclusive parental responsibility for her. She may not even want to pursue that civil suit against the estate of her late mother, thereby engaging her maternal relatives as adversaries. Even if she does, her now adult sister or some other competent adult could stand as her litigation guardian (or “tutor” within the meaning of the Civil Procedure Act 2005 (NSW)). Notwithstanding the applicant might honestly believe his actions are for the benefit of the youngest child, they may well not be. His subjective belief is not proof of objective facts.
To the extent that the youngest child does not already have sufficient maturity to make decisions for herself (Secretary, Department of Health & Community Services v JWB and SMB (Marion’s Case) (1992) 175 CLR 218), the adults with or amongst whom she lives are able to make an application under the Act for an order conferring them with parental responsibility (s 65C(c)) or, alternatively, to the Supreme Court of New South Wales for appointment as the youngest child’s guardians (s 14 of the Guardianship of Infants Act 1916 (NSW)). The applicant would be necessarily joined to and be entitled as of right to participate in any such State proceedings and, subject to the grant of leave, to respond with his own application in any such proceedings brought under the Act.
The secondary purpose of the intended Part VII proceedings is to fundamentally re-structure the youngest child’s care arrangements, which have now been in place for many years. There are no reasonable grounds set out within the applicant’s affidavit to ostensibly justify the need for such a profound review of the youngest child’s residential care or the need to now invest him with sole parental responsibility for her. The applicant admits he and the youngest child have not spent any time together for over seven years, telephone communication between them ceased more than a year ago, and even written communication between them has slowed to a trickle. The applicant’s ultimate proposal for an order which would compel the youngest child to now live with him is unrealistically audacious. It lacks any “reasonable ground”.
Applying the wide statutory test of “vexatious proceedings” (s 102Q(1)) to the applicant’s intended appeal (and to the intended first-instance proceedings underlying it) inexorably leads to the conclusion that such proceedings are without reasonable grounds and, most probably, also an abuse of the Court’s process. As such, the application for leave to bring the proceedings in the form of his appeal must be dismissed (s 102QF(2)).
At the very least, the applicant has failed to demonstrate that the proposed proceedings are not “vexatious proceedings” and so leave to bring them may not be granted (s 102QG(4)).
Those conclusions are capably reached without the need for advertence to the many past and pending suits brought by the applicant in a host of Federal and State courts and tribunals. To say the applicant is an experienced litigant is an understatement of some magnitude. While he might have enjoyed some success, on many occasions he has not.
Since the applicant cannot establish entitlement to the grant of leave to bring any fresh proceedings in relation to the youngest child, there is no need to draw the application to the attention of the intended respondents (s 102QG(1)) and it is unnecessary to separately consider whether he should additionally have leave under s 94AA of the Act to appeal from the order made by the primary judge on 27 March 2020.
The Application in an Appeal filed by the applicant on 8 May 2020 must be dismissed. The applicant cannot appeal from the order made on 27 March 2020.
I certify that the preceding fifty-four (54) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Strickland, Ainslie-Wallace & Austin JJ) delivered on 12 June 2020.
Associate:
Date: 12 June 2020
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