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 2010FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: 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 under s 102QE of the Family Law Act 1975 (Cth) (“the Act”) to commence fresh proceedings in the teeth of an operative vexatious litigant injunction made under s 102QB of the Act, by which she has been bound since October 2014.
The orders made on 28 October 2014 achieved two purposes. First, the child-related proceedings then being prosecuted by the applicant before the Court were declared to be vexatious. Secondly, the applicant was prohibited from instituting any further child-related proceedings under the Act without the prior grant of leave to do so.
Relevantly for present purposes, the injunction provided:
1.Pursuant to Section 102QB(2)(b) of the Act the Applicant is hereby prohibited from instituting Child Related Proceedings pursuant to the Act in a court having jurisdiction under the Act without leave first being obtained pursuant to Section 102QG of the Act.
The same injunction which stymied her proposed fresh child-related application at first instance precludes her from filing the proposed appeal without leave – hence the current application.
The content of the Application in an Appeal reveals how the applicant wants her application for leave to appeal determined in chambers in accordance with r 13.38 and Pt 5.3 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), which request can be properly accommodated.
Legal principles
In SCVG (2020) FLC 93-967, the Full Court said:
6.In order to prosecute his intended appeal, the applicant requires the grant of leave in two respects, governed by two different tests.
7.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.
8.Secondly, he also requires leave to appeal from the order made on 27 March 2020.
…
23.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.
24.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.
25.Therefore, leave is required to bring the appeal, such grant of leave being governed by ss 102QE, 102QF and 102QG of the Act.
26.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.
27.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]).
28.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)).
In Harrell [2021] FamCAFC 119, the Full Court said:
7.The Act expressly contemplates an application being made for the grant of leave to institute fresh proceedings to circumvent the effect of a vexatious proceedings order (s 102QE(2)).
8.Unless the Pt XIB injunction expressly carves out and exempts appeals from it, the injunction operates to restrain the commencement of any fresh proceedings, including an appeal from the injunction itself (Pencious & Searle (2017) FLC 93-805 at [77]–[88]).
9.An appeal from an injunction made against a litigant under s 102QB(2) of the Act, without any express appeal exemption, may only be brought with leave granted under Pt XIB of the Act (s 102QG), but does not require an additional grant of leave under Pt X of the Act because the order is final (s 102QB(5)) and not a “prescribed decree” (s 94AA; reg 15A(1) of the Family Law Regulations 1984 (Cth)). Conversely, if the injunction expressly preserves the litigant’s right of appeal from it, no leave to appeal is required under either Pt X or Pt XIB of the Act.
10.The situation is different in respect of appeals from orders which either dismiss (s 102QF) or grant (s 102QG) applications for leave to institute proceedings contrary to the terms of an existing Pt XIB injunction, because such orders are prescribed decrees (reg 15A(1)(b)) and therefore require the grant of leave under both Pt X and Pt XIB of the Act.
11.When leave is required under Pt X of the Act to appeal from any prescribed decree made by a judge of the Family Court of Australia or a judge of a State or Territory Supreme Court, including when the decree is one made under either s 102QF or s 102QG of the Act, the application for leave must be determined by this Court (s 94AA(1)).
12.When leave is required under Pt X of the Act to appeal from a decree made by a judge of the Federal Circuit Court of Australia or a magistrate of the Magistrates Court of Western Australia, including when the decree is one made under either s 102QF or s 102QG of the Act, the application for leave may be determined either by this Court or by a single judge of the Family Court of Australia (s 94AA(1)).
13.In this instance, the intended appeal lies from orders made by the primary judge pursuant to the power found in s 102QB(2) – not s 102QF or s 102QG of the Act. The right of appeal from the subject orders was not expressly exempted from their operation and so the applicant’s proposed appeal requires the grant of leave pursuant to only Pt XIB of the Act.
14.But unlike in respect of the leave which is required under Pt X of the Act, no statutory provision prescribes by whom the grant of leave under Pt XIB should be decided when the proposed fresh proceedings take the form of an appeal from a s 102QB(2) order. Even if the appealed order is made by a judge of the Family Court of Australia, as is the situation here, nothing prevents the application for leave to appeal being entertained by another single judge of the Family Court of Australia. For consistency, it would be better if the pattern established by s 94AA(1) of the Act is employed and so, accordingly, this Court should decide the question.
Those two appeals were decided when appeals were still governed by Pt X of the Act, though they are now governed by the provisions of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (“the FCFCA Act”). The change, however, has not altered the need for the applicant to seek and obtain leave to appeal twice over: first, leave to appeal under s 102QE of the Act, to circumvent the vexatious litigant injunction; and secondly, leave to appeal from the prescribed judgment of the primary judge pursuant to the FCFCA Act (s 28(3)(e)(ii)) and the Federal Court and Federal Circuit and Family Court Regulations 2012 (Cth) (reg 4.02(1)(b)).
Since the order which is the subject of the proposed appeal was made by a judge of the Family Court of Western Australia, the second application must be heard by the Full Court and the first application should be heard by the Full Court (Harrell at [11]–[14]).
Leave under the Act
The application under s 102QE of the Act for leave to bring an appeal against the dismissal order made on 14 July 2022 must be dismissed if the proposed appeal falls 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 term “vexatious proceedings” is defined as follows (s 102Q):
“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.
As can been seen from sub-paragraph (c) of the definition, it is enough for the appeal to be characterised as vexatious if it lacks “reasonable ground”.
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 affidavit filed by the applicant contains none of the requisite information and so the application could be refused on that account alone. However, in pursuit of abundant caution we shall explain why the appeal proposed by the applicant lacks “reasonable ground” and the application for leave to appeal must therefore be dismissed for substantive reasons.
The appeal is misconceived because it alleges errors by the primary judge in failing to identify the merit of the applicant’s proposed application for fresh parenting orders. But the primary judge did not dismiss her proposed substantive application; only her preliminary application for permission to bring the substantive application. The appeal must be directed to the validity of the decision to refuse leave to bring the fresh application despite the vexatious litigant injunction. The appeal cannot be allowed to descend to merely an argument about the asserted merit of the application the primary judge refused to let her prosecute, for otherwise the applicant would be simply repeating the case she ran at first instance. The proposed appeal does not articulate any recognisable legal, factual or discretionary error made by the primary judge when determining to refuse leave to bring the fresh child-related application.
At first instance, if permitted, the applicant apparently intended to seek the substantial revision of parenting orders, including by reversal of the subject child’s long-standing residence with the respondent, and to resort to s 79A of the Act to re-open financial orders formerly made between the parties. As an aside, it should be noted the vexatious litigant injunction only thwarts the applicant from bringing fresh child-related proceedings; not financial proceedings.
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.
The other errors, ostensibly characterised as grounds of appeal which lie from discretionary judgments, are bald allegations which do not appear to materially undermine the conclusions reached by the primary judge pursuant to the statutory imperatives of ss 102QF(2) and 102QG(4) of the Act.
The remaining grounds are no more than disagreement with the decision (Grounds 2 and 8) or misconceived arguments about the Constitution, jurisdiction and power (Grounds 7 and 9). We shall not recite their terms.
It must follow that the proposed appeal lacks reasonable ground, making it vexatious, and so the application for leave to bring it must be dismissed (s 102QF(2)). At the very least, the available material necessitates a conclusion the applicant has failed to demonstrate that the proposed appeal is not vexatious, so leave to bring it cannot be granted (s 102QG(4)).
Leave under the FCFCA Act
The grant of leave to appeal under s 28 of the FCFCA Act ordinarily requires the applicant to show 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]).
For the reasons given above, the applicant could not demonstrate that sufficient doubt attends the decision of the primary judge to warrant the grant of leave to appeal.
Conclusion
The applicant is refused leave to appeal.
The applicant also sought another order granting her leave to file an application seeking permission to file further evidence in the appeal. No such order is necessary. There will be no appeal and, consequently, no need for further evidence.
The Application in an Appeal filed on 8 August 2022 is dismissed.
I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Aldridge, Austin & Tree. Associate:
Dated: 23 August 2022
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