Spencer - [2022] FedCFamC1A 131

Federal Circuit and Family Court of Australia
(DIVISION 1) APPELLATE JURISDICTION
Spencer [2022] FedCFamC1A 131

Appeal from: Spencer & Spencer [2022] FCWA 148

Appeal number(s): NAA 171 of 2022

File number(s): PTW 7180 of 2010

Judgment of: ALDRIDGE, AUSTIN & TREE JJ

Date of judgment: 23 August 2022

Catchwords: FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – LEAVE TO APPEAL – Vexatious litigant – Where the applicant seeks leave to appeal against the dismissal of her application to commence fresh proceedings – Where the applicant requires leave to appeal under s 102QE of the Family Law Act 1975 (Cth) and leave to appeal from a prescribed judgment pursuant to s 28(3)(e)(ii) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) – Where the proposed appeal is vexatious as it lacks reasonable ground – Where the applicant has not demonstrated that sufficient doubt attends the decision of the primary judge to warrant the grant of leave to appeal – Application dismissed.

Legislation:
Family Law Act 1975 (Cth) Pt X, ss 79A, 102Q, 102QB, 102QE, 102QF, 102QG

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

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) Pt 5.3, r 13.38

Federal Court and Federal Circuit and Family Court Regulations 2012 (Cth) reg 4.02

Cases cited:
Harrell [2021] FamCAFC 119

Medlow & Medlow (2016) FLC 93-692; [2016] FamCAFC 34

SCVG (2020) FLC 93-967; [2020] FamCAFC 147

Number of paragraphs: 30

Date of last submission: 8 August 2022

Date of hearing: Determined on the papers

Place: In Chambers

The Applicant: Self-represented litigant

ORDERS

NAA 171 of 2022
PTW 7180 of 2010

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION

BETWEEN:
MS SPENCER

Applicant

order made by:

ALDRIDGE, AUSTIN & TREE JJ

DATE OF ORDER:

23 august 2022

THE COURT ORDERS THAT:
1.The Application in an Appeal filed on 8 August 2022 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 Spencer has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
ALDRIDGE, AUSTIN & TREE JJ:

An Application in an Appeal filed on 8 August 2022, supported by an affidavit filed by the applicant on the same date, requires determination on the papers.
The applicant seeks the grant of leave to file a Notice of Appeal. Her proposed appeal is from an order made by the primary judge on 14 July 2022, dismissing her interlocutory application filed on 12 June 2022, seeking leave…

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 Spencer

Details

AGLC: Spencer [2022] FedCFamC1A 131
Case: [2022] FedCFamC1A 131
Decision Date

CaseChat Overview and Summary

In this case, the applicant sought leave to appeal against the refusal of her application for leave to bring fresh proceedings under section 102QE of the Family Law Act 1975. The application was dismissed by the primary judge, who found that the applicant's affidavit was largely repetitive, consisting of her beliefs and suspicions without supporting evidence. The applicant's proposed Form 1 application sought orders regarding her child's care and support in the father's custody.

The court was required to determine whether the applicant's proposed Form 1 application was vexatious and whether there were reasonable grounds to grant leave. The primary judge considered the applicant's affidavit and the evidence provided, including the child's school reports, ABN searches, and a child support assessment statement. The primary judge found that the evidence did not support the applicant's claims and that she had not demonstrated that the proposed proceedings were not vexatious.

The court rejected the applicant's contention that the child had not received appropriate parental and professional support in the father's care, and found that the applicant was fixated on the same issues raised in her previous application for leave in 2018. The court concluded that there was no cogent evidence to support the applicant's assertions and that she had failed to demonstrate that the proposed proceedings were not vexatious. The court denied the applicant's application for leave to appeal.

The court further found that the alleged bias of the primary judge was not reasonably discernible from the reasons for judgment and that the applicant's dissatisfaction with the decision did not demonstrate any bias. The court also noted that the primary judge's refusal of the applicant's 2018 application for leave did not disqualify him from dealing with the fresh application. The applicant's proposed grounds of appeal were rejected as they were either not particularised or not supported by the reasons for judgment.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The primary judge said this in the reasons for judgment about the evidence adduced by the applicant in support of her application for the grant of leave under s 102QE(2) of the Act:4.The Affidavit comprises 101 pages, including approximately 75 pages of annexures such as: (1) the child’s Semester 1 and 2 2021 school reports for Year 8; (2) a copy of my 2018 decision in relation to [the applicant’s] previous application for leave under s 102QE of the Act (2018 Decision); (3) a Commonwealth Court’s Portal listing of all Form 2 applications filed by [the applicant] in the proceedings; (4) ABN searches of various entities; (5) a child support assessment statement for the period from 27 May 2021 to 31 October 2021; and (6) a proposed Form 1 application setting out the orders she seeks, if leave is granted.…9.Notwithstanding that the Affidavit purports to comply with the requirements of s102QE(3) of the Act, the Affidavit is repetitive and largely comprises [the applicant’s] beliefs and suspicions about various matters. In the Affidavit [the applicant] raises a raft of issues and allegations, most (if not all) of which have been previously raised by her. …(Footnote omitted) The primary judge surveyed the filed evidence and:(a)rejected the applicant’s contention of how the evidence showed the subject child had not received “appropriate parental and professional support in the father’s care” (at [10]–[11]); and(b)found the applicant was still fixated upon the same issues raised in her last application for leave to bring fresh proceedings in 2018, also refused, including her perception of unfair treatment in litigation extending back to 2013 and her unfounded attacks upon the child’s father (at [12]). The primary judge then reached this conclusion:13.Other than [the applicant’s] beliefs and suspicions, there is simply no cogent evidence to support her assertions.14.… The evidence upon which [the applicant] relies does not support the making of orders in terms of her proposed Form 1 application and she has not demonstrated that there are reasonable grounds upon which those orders would be made. [The applicant] has failed to demonstrate that the proposed proceedings are not vexatious. Leave will not be granted to [the applicant] to file her proposed Form 1 application. The applicant produced a proposed Notice of Appeal dated 29 July 2022 in aid of her application for the grant of leave to appeal. The grounds of appeal for which the applicant would contend include: bias of the primary judge (Grounds 3 and 6); mistakes of fact about the underlying evidence concerning the child’s school records (Ground 1); failing to take into account what doctors had said about the child (Grounds 4 and 5); and that the decision was plainly wrong (Ground 10). The alleged bias, which was not particularised as being either actual or apprehended, cannot be reasonably discerned from the reasons for judgment, which could be the only source of the alleged bias since the application was determined by the primary judge on the papers (at [8]). Consequently, there was no hearing during which judicial conduct could have been the source of any complaint and consequent disqualification application. Making a decision with which the applicant is dissatisfied is not, of itself, demonstrative of any bias. Alternatively, if the applicant contends that the bias lay in the primary judge having refused the 2018 application for leave, that of itself would not disqualify the same judge from dealing with a fresh application.

Ratio Decidendi

Legal Principle Established

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Appeal from:	Spencer & Spencer [2022] FCWA 148
Appeal number(s):	NAA 171 of 2022
File number(s):	PTW 7180 of 2010
Judgment of:	ALDRIDGE, AUSTIN & TREE JJ
Date of judgment:	23 August 2022
Catchwords:	FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – LEAVE TO APPEAL – Vexatious litigant – Where the applicant seeks leave to appeal against the dismissal of her application to commence fresh proceedings – Where the applicant requires leave to appeal under s 102QE of the Family Law Act 1975 (Cth) and leave to appeal from a prescribed judgment pursuant to s 28(3)(e)(ii) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) – Where the proposed appeal is vexatious as it lacks reasonable ground – Where the applicant has not demonstrated that sufficient doubt attends the decision of the primary judge to warrant the grant of leave to appeal – Application dismissed.
Legislation:	Family Law Act 1975 (Cth) Pt X, ss 79A, 102Q, 102QB, 102QE, 102QF, 102QG Federal Circuit and Family Court of Australia Act 2021 (Cth) s 28 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) Pt 5.3, r 13.38 Federal Court and Federal Circuit and Family Court Regulations 2012 (Cth) reg 4.02
Cases cited:	Harrell [2021] FamCAFC 119 Medlow & Medlow (2016) FLC 93-692; [2016] FamCAFC 34 SCVG (2020) FLC 93-967; [2020] FamCAFC 147
Number of paragraphs:	30
Date of last submission:	8 August 2022
Date of hearing:	Determined on the papers
Place:	In Chambers
The Applicant:	Self-represented litigant

order made by:	ALDRIDGE, AUSTIN & TREE JJ
DATE OF ORDER:	23 august 2022