Spencer and Spencer (No. 3)
[2020] FamCAFC 145
•12 June 2020
FAMILY COURT OF AUSTRALIA
| SPENCER & SPENCER (NO. 3) | [2020] FamCAFC 145 |
| FAMILY LAW – APPLICATION IN AN APPEAL – LEAVE TO APPEAL – VEXATIOUS LITIGANT – Where final parenting and property orders were made in 2013 and 2017 respectively – Where the primary judge found the mother had abused the child emotionally and psychologically by causing him to falsely believe that he had been sexually abused by his father – Where the mother was declared a vexatious litigant in 2014 – Where the mother subsequently made an application to institute fresh parenting proceedings – Where the mother’s application failed to comply with the requirements of s 102QE(3) of the Family Law Act 1975 (Cth) – Where the primary judge nonetheless considered the merits of the application – Where the primary judge dismissed the mother’s application – Where the primary judge found the mother continued to be “fixated” on issues already decided by the Court – Where the mother’s application was another example of her vexatious litigation – Where the mother seeks leave to appeal – Where the mother’s complaints on appeal are discursive – Where the mother sought to re-agitate the issues decided in the 2013 parenting proceedings – Where nothing advanced by the mother in her application evidences any error on the part of the primary judge – Application dismissed – Where the mother is to pay the father’s costs in a fixed sum. FAMILY LAW – APPLICATIONS IN AN APPEAL – Where the mother filed four Applications in an Appeal – Where those applications sought the recusal of the bench of three judges, to adduce further evidence and to review decisions of a Registrar – Where the recusal application was decided separately – Where all three applications were devoid of merit – Where the applications evidence the mother’s intention to |
| Family Law Act 1975 (Cth) ss 61B, 65X(2), 65Y, 65Z, 79A(1)(a), 93A(2), 102QB, 102QE, 102QF, 117 Family Law Rules 2004 (Cth) rr 19.18(1)(a), 22.39(1) |
| CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48 Idoport Pty Ltd v National Australia Bank Ltd, Idoport Pty Ltd v Donald Robert Argus [2007] NSWSC 23 Metwally v University of Wollongong (1985) 60 ALR 68; [1985] HCA 28 Redmond & Stolz (Stay Appeal) [2015] FamCAFC 116 Spencer & Spencer [2013] FCWA 86 Spencer & Spencer (No. 2) [2014] FCWA 71 Spencer & Spencer [2016] FamCAFC 212 Spencer & Spencer [2018] FCWA 100 Spencer & Spencer [2020] FamCAFC 55 Spencer & Spencer (No. 2) [2020] FamCAFC 108 Stopford Malloy & Malloy (Costs) [2018] FamCAFC 6 |
| APPLICANT: | Ms Spencer |
| RESPONDENT: | Mr Spencer |
| FILE NUMBER: | PTW | 7180 | of | 2010 |
| APPEAL NUMBER: | WEA | 45 | of | 2018 |
| DATE DELIVERED: | 12 June 2020 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Perth |
| JUDGMENT OF: | Aldridge, Kent & Duncanson JJ |
| HEARING DATE: | 8 May 2019; 15 July 2019; 30 October 2019 and by written submissions filed on 18 May 2020, 26 May 2020 and 2 June 2020 |
| LOWER COURT JURISDICTION: | Family Court of Western Australia |
| LOWER COURT JUDGMENT DATE: | 13 December 2018 |
| LOWER COURT MNC: | [2018] FCWA 249 |
REPRESENTATION
| THE APPLICANT: | In person |
| COUNSEL FOR THE RESPONDENT: | Ms Giles (on 8 May 2019) |
| SOLICITOR FOR THE RESPONDENT: | Biddulph & Turley |
Orders
The Application in an Appeal filed on 24 January 2019 be dismissed.
The Application in an Appeal filed on 27 August 2019 be dismissed.
The Application in an Appeal filed on 10 June 2020 be dismissed.
The application for leave to appeal from the orders made by the primary judge in the Family Court of Western Australia on 13 December 2018 be dismissed.
The applicant pay the respondent’s costs of and incidental to the application for leave to appeal in the fixed sum of $9,022.94 within thirty (30) days of these orders.
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 Spencer & Spencer (No. 3) 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 PERTH |
Appeal Number: WEA 45 of 2018
File Number: PTW 7180 of 2010
| Ms Spencer |
Applicant
And
| Mr Spencer |
Respondent
REASONS FOR JUDGMENT
By an Amended Notice of Appeal filed on 24 January 2019 Ms Spencer (“the mother”) seeks leave to appeal, and to appeal if leave is granted, from orders made by the primary judge in the Family Court of Western Australia on 13 December 2018.
The parties addressed their arguments in respect of the application for leave to appeal in conjunction with their arguments on appeal and we will also adopt that approach.
The primary judge dismissed, pursuant to s 102QF of the Family Law Act 1975 (Cth) (“the Act”), the mother’s application made pursuant to s 102QE of the Act for leave to institute parenting proceedings in relation to the parties’ only son, D (“the child”), who was born in 2008.
It was necessary for the mother to obtain leave to institute proceedings because, on 28 October 2014, a trial judge in the Family Court of Western Australia made a vexatious proceedings order with respect to the mother pursuant to s 102QB(2)(b) of the Act. The mother’s appeal from that vexatious proceedings order was, together with some five other appeals brought by the mother from various other orders, dismissed by the Full Court on 3 November 2016 (Spencer & Spencer [2016] FamCAFC 212).
The application for leave to institute parenting proceedings had proceeded before the primary judge in the conventional manner contemplated by s 102QF(4) of the Act, that is, without the application or material filed in support of it having been served upon the child’s father, Mr Spencer (“the father”) and without hearing from the father. However, the father participated in these appeal proceedings to oppose the grant of leave to appeal and the appeal.
The application for leave to appeal was heard on 8 May 2019 with judgment being reserved. However, events subsequent to the hearing forestalled the delivery of judgment. On 12 May 2019, the mother filed an Application in an Appeal seeking, inter alia, that each member of this Court who heard her application for leave to appeal (each of whom are resident in different States) disqualify themselves on account of alleged apprehended bias. The application sought these orders:
1.Court to use inherent powers to effectively declare the proceedings on the·8th May 2019 as a mistrial on the grounds of a (a) a lack of procedural fairness against a self-litigant &/or (b) perceived bias.
2.The costs of the above to be paid for by the [father] &/or his counsel.
3.The proceedings known as WEA 45 of 2018 to be re-heard with Appeal WEA 21 of 2018 & WEA 15 of 2019 in order to prevent the duplication of facts.
4.Court to direct the transference of the combined proceedings to an impartial coram - including the disqualification of any WA Justice from the Family Court of WA due to the involvement of the conduct of WA Counsel.
(As per the original)
When that application was initially listed for hearing on 15 July 2019 the mother sought and obtained an adjournment of the hearing. The application was subsequently heard on 30 October 2019. On 5 May 2020, the separate reasons of each member of the Full Court were delivered in support of the order dismissing that application (Spencer & Spencer (No. 2) [2020] FamCAFC 108 (“Spencer & Spencer (No. 2)”). Within those reasons for judgment is contained the reasons for granting the mother’s application in July 2019 for the hearing of the application to then be adjourned (Spencer & Spencer (No 2) at [22]–[25]).
On 12 August 2019, the mother attempted to file a further Application in an Appeal purporting to be an application pursuant to s 93A(2) of the Act to adduce further evidence on appeal and seeking further orders as follows:
1.Appeal Court be permitted to consider the new (fresh) evidence referred to/attached to the Affidavit of [Ms Spencer] sworn the 4/8/19.
2.[The father’s] Counsel be restrained by injunction/Court order from any further participation in this case.
3.The case be resolved by an independent corum [sic] using the Court’s inherent and statutory powers to “unravel” the gross miscarriage of justice involving a mother and child (and associated costs).
4.The Court refer the [father] and/or Counsel to the appropriate regulatory bodies for failing to disclose relevant material, knowingly causing a miscarriage of justice and/or perverting the course of justice.
5.The [father] and/or Counsel be responsible for the costs incurred in this matter by both the Court and the [mother].
(As per the original)
The Registrar refused to accept that application for filing on the basis that r 22.39(1) of the Family Law Rules 2004 (Cth) (“Family Law Rules”) provides that an Application in an Appeal to adduce further evidence on appeal is to be filed at least 14 days before the date of commencement of the sittings in which the appeal is listed for hearing. As noted, the application for leave to appeal was heard on 8 May 2019 and the subject application was not sought to be filed until some three months after the hearing had been completed.
The Registrar’s refusal resulted in the mother filing a further Application in an Appeal on 27 August 2019 effectively seeking a review of the Registrar’s decision and that this Court receive the documents sought to be filed by way of further evidence, and to entertain the orders sought in the application.
On 5 May 2020, judgment having been delivered with respect to the mother’s earlier Application in an Appeal filed on 12 May 2019 as referred to, the Full Court made directions for the filing by each party of written submissions in respect of the further application filed by the mother on 27 August 2019. Those written submissions were filed on 18 May 2020, 26 May 2020 and 2 June 2020 respectively.
We will return to this application later in these reasons.
Litigation history
Given the nature of the application considered by the primary judge and its outcome, and the relevance of the litigation history, it is necessary to outline a summary of the extensive and complex history of this litigation.
The mother was born in 1972 and is 48 years of age. The father was born in 1966 and is 53 years of age. The parties commenced cohabitation in June 2007, married in January 2008 and finally separated in February 2010. As noted, the only child of their relationship was born in 2008.
Property and parenting proceedings were commenced in December 2010 and January 2011 respectively.
The parenting proceedings were initially heard at a trial spanning some 25 days in March, June and July 2013 before Moncrieff J. On 28 August 2013, his Honour ordered, inter alia, that the father have sole parental responsibility for the child and for the child to reside with the father. The question as to what time and/or communication the child should have with the mother was adjourned to a date in September 2013.
Importantly, the mother’s application for an extension of time to appeal from the 28 August 2013 orders was dismissed in July 2014 and the mother’s application for special leave to appeal was refused by the High Court of Australia in December 2014.
In October 2013, Moncrieff J made orders for the child’s time with the mother to be supervised by E Contact Centre. Further orders made between 21 January 2014 and 21 November 2014, including the vexatious proceedings order, were the subject of the six appeals by the mother earlier referred to and dismissed by the Full Court on 3 November 2016 (Spencer & Spencer [2016] FamCAFC 212).
In reasons for judgment delivered on 3 November 2016, the Full Court recorded:
8.On 28 August 2013, Moncrieff J delivered his reasons and made final orders for the father to have parental responsibility and for the child to live with him. In his reasons, which ran over 300 pages, his Honour found that:
a)the allegations that the father had sexually and physically abused [the child] during supervised contact were constructs designed to destroy the possibility of the child having a relationship with his father (at [849]);
b)allowing [the child] to believe that he had been sexually abused by his father was neglectful and abusive in itself (at [855]);
c)the mother had allowed [the child] to be abused in the context of “therapy”, which had served to reinforce the boy’s falsely held beliefs (at [857]);
d)the father had the capacity to provide for [the child’s] needs (at [871], [876] and [879]); and
e)the mother would not facilitate or encourage [the child’s] relationship with his father, whereas the father would facilitate a relationship between the boy and his mother (at [890]–[891]).
9. His Honour concluded:
907 Whilst my decision will bring pain to [the child], it is manageable, it will be interim. It will give him the opportunity to reattach to reality rather than a life shrouded in false belief with the consequences that may have for his mental health in the future and the potential to irrevocably harm him, or at the least psychologically scar him and potentially impede his ability to form normal relationships. Such a conclusion could never be in his best interests and accordingly, and whilst I am mindful and concerned at the pain I will inflict on [the child] and the onerous responsibility that I will place upon the father, I am satisfied that I should make such an order and that such an order is in [the child’s] best interests.
…
910 I do not at this point propose to make orders that [the child] have contact with his mother at all. I propose to adjourn the issue of contact for a period of two weeks to receive an update as to how [the child] is progressing and what management strategies have been put in place to best ensure his psychological welfare.
911 I need to be satisfied before I make an order for contact that [the child] will not be exposed to the emotionally abusive behaviour and psychologically damaging behaviours of the mother to which I have referred. Logically, contact will need to be supervised at a high vigilance level and I consider that [E Contact Centre] is the preferred supervisor given the more toxic view held of [F Contact Centre] by the mother, notwithstanding her allegations against [E Contact Centre] and her threats of litigation against each agency.
(As per the original)
In short, Moncrieff J found that the mother had abused the child emotionally and psychologically by causing him to falsely believe that he had been sexually abused by his father in her attempt to destroy the possibility of the child having a relationship with his father.
The ongoing parenting proceedings concerning the child’s time and communication with the mother were the subject of a further trial heard by Moncrieff J over some 10 days in June, July and September 2014. His Honour delivered his reasons for judgment in relation to that second trial of parenting proceedings, and the vexatious litigant declaration, on 21 November 2014, with orders that the mother’s contact with the child be limited to the exchange of letters, photographs, presents and videos (Spencer & Spencer (No 2) [2014] FCWA 71).
As noted in the 3 November 2016 reasons for judgment of the Full Court, with respect to the parenting orders made by Moncrieff J on 21 November 2014:
17.His Honour explained in his reasons that the mother’s time with the child had been limited to telephone contact since March 2014 because she had failed to attend a meeting with the supervision service as anticipated by the orders of 8 April 2014. His Honour went on to outline difficulties that had occurred with the telephone contact, before concluding his 291-page judgment as follows:
511There is no doubt that [the child] loves his mother and he wants to have a relationship with her. There is no doubt that it was the hope and expectation that a relationship between [the child] and his mother would be normalised. That, however, has not come to pass. Whilst his [mother] wishes to agitate the fault of every other person apart from herself in this outcome, it has been within the [mother’s] gift to review her actions.
…
515The [mother] appears to be incapable of recoginising [sic] that her actions have the potential to visit upon [the child] significant psychological harm and until such time as she is capable of doing so and maintaining a relationship with [the child] that is not simply a tool for her own personal agenda, it is difficult to discern any benefit to [the child] in maintaining a relationship with his mother or that the same could be positively meaningful or do other than place him at risk of psychological harm.
517 This matter engenders a result that is not a positive one but rather is one that is directed towards doing the least harm to [the child] given the [mother’s] attitude and conduct.
…
607… I have determined that is in [the child’s] best interests that the orders pursuant to which the [mother] has contact with [the child], now only by telephone, be discharged.
608I do consider it appropriate however that she have the opportunity to communicate with [the child] by way of correspondence and to send him gifts and that [the child] be at liberty to write to his mother.
…
621 I am further satisfied that I should make orders that finalise these proceedings. I have no doubt that the same have not only had a significant financial impact upon the [father] but also a significant emotional one which he has had to manage whilst parenting [the child]. The time, cost and inconvenience to him inevitably must have a negative effect upon [the child]…
(As per the original)
The mother’s appeal from the orders made by Moncrieff J on 21 November 2014 was one of the appeals dismissed by the Full Court on 3 November 2016. Also the subject of one of the mother’s unsuccessful appeals was Moncrieff J’s order made on 21 January 2014 that the mother pay the father’s and the Independent Children’s Lawyer’s (“ICL”) costs of the first parenting trial in the amount of $56,082 to the ICL and $243,918 to the father.
The litigation history includes the mother having sought, unsuccessfully, special leave to appeal to the High Court of Australia on two occasions.
The property proceedings were heard by Walters J at a trial conducted over 10 days in June 2015 and January 2016. Those proceedings were reopened in both May and October 2017 to allow the mother to adduce further evidence. These reopenings saw the total length of the trial increase to 14 days.
Walters J made orders and delivered reasons on 20 December 2017 (Spencer & Spencer [2017] FCWA 174). His Honour found that the mother should receive 18.75 per cent of the parties’ property interests which equalled $431,033 of the total property worth $2,298,842. His Honour found that the father would be required to pay the mother a cash sum of $132,691 after accounting for the value of the property the mother was to retain. However, owing to outstanding costs liabilities in relation to the mother’s previous appeals, his Honour reduced that cash sum to $62,715.
His Honour found that the parties had incurred significant costs throughout the litigation. The father’s costs incurred as at May 2017 were $961,743 and the mother’s litigation costs were $300,000.
Following the conclusion of the property proceedings, the mother sought her costs. Walters J had retired so the matter was heard by Sutherland J, as the Chief Judge then was. The mother sought:
a)a total of $330,000 in costs for her legal fees;
b)$5,000 for “incidental costs of [the mother’s] court attendance as a self litigant for long distance travel, subpoena room attendance and disbursements”;
c)the Court use its inherent power to alter previous costs orders;
d)“indemnity Interest” on the $330,000 sought above; and
e)the father pay 50 per cent of the costs that the mother was ordered to pay the ICL following their parenting matters.
The father sought that the costs application be dismissed. Sutherland J (as the Chief Judge then was) delivered her Honour’s reasons for judgment on 25 May 2018 (Spencer & Spencer [2018] FCWA 100) (“May 2018 reasons”) and dismissed the mother’s application, finding that, while neither party was wholly unsuccessful, and that Walters J had made adverse findings in relation to both parties’ conduct of their cases, the mother’s “scattergun approach” and discursive and unrealistic claims unnecessarily complicated what should have been a simple case (May 2018 reasons at [19]–[26]).
The mother filed an appeal from the orders dismissing her costs application. That appeal was dismissed by the Full Court on 13 March 2020 (Spencer & Spencer [2020] FamCAFC 55 (“Spencer & Spencer”).
On 29 March 2019, Sutherland CJ dismissed the mother’s application seeking that the final property settlement orders made by Walters J be set aside pursuant to s 79A(1)(a) of the Act. The mother’s appeal from that dismissal was also dismissed by the Full Court on 13 March 2020 (Spencer & Spencer).
Since the making of the vexatious proceedings order on 28 October 2014, the mother has sought to file a plethora of applications to revisit parenting orders. These can be divided into two categories; those dealt with prior to the hearing by the primary judge in the subject application and those dealt with by her Honour.
There was a total of 15 applications and one Response made by the mother seeking a variation or reopening of the final parenting orders that were dealt with prior to the hearing before the primary judge. All 16 attempts were dismissed (13 December 2018 reasons at [10]). There were a further six applications which came before the primary judge on 1 August 2018; however, the mother agreed that all but two should be dismissed (though the mother identified certain material filed in support of those applications that she still wished to rely on) as they were essentially superseded by the two applications filed on 3 February 2017 and 31 July 2017.
The primary judge detailed in her reasons for judgment the “multitude” of applications advanced by the mother since the making of the vexatious proceedings order on 28 October 2014 at [10] and [11] as follows:
10Since being declared a vexatious litigant on 28 October 2014, the mother has filed or sought to file a multitude of Applications in the parenting proceedings. Many of these Applications have previously be [sic] dealt with and dismissed without parenting orders being made in favour of the mother. A summary of the Applications is set out below:
a)Three ex-parte Form 2 Applications filed on 19 November 2014, 20 November 2014 and 28 November 2014, all of which were dismissed on 1 December 2014.
i)In the Application filed on 19 November 2014, the mother sought leave to file: “[a] Form 18 and supporting affidavit and (b) a Form 2 and supporting affidavit about the perception of bias”. The mother also sought leave to file two affidavits of her husband [Mr C] and two affidavits by her.
ii)In the Application filed on 20 November 2014, the mother sought leave to file “a proposed Form 2, Form 4 and an affidavit in support of a change of parenting orders/recovery orders on the [father] and the ICLs”.
iii)In the Application filed on 28 November 2014, the mother sought leave to file “either (i) a Form 1 and Form 4and/or (ii) a Form 2, Form 4 and supporting affidavit for the recovery of [the child] from the Respondent's care and responsibility”.
b)Seven ex-parte Form 2 Applications filed on 13 January 2015, 13 January 2015, 22 January 2015, 24 February 2015, 17 March 2015, 25 March 2015 and 7 April 2015, all of which were dismissed on 19 May 2015.
i)In the Application filed on 13 January 2015, the mother sought leave to file “a Form 2 and supporting affidavit on the [father] for change of circumstances”.
ii)In the Application filed on 13 January 2015, the mother sought leave to file “the documents attached to the supporting affidavit (by way of appendicies [sic]) to his application which comprises a Form 2 and supporting affidavit”.
iii)In the Application filed on 22 January 2015, the mother sought leave to file “the Form 2 and accompanying Affidavit on change of circumstances: FOI information from [G Hospital]”.
iv)In the Application filed on 24 February 2015, the mother sought leave to file “the Form 2 and supporting affidavits with respect to (a) the [father’s] lack of full and frank disclosure in a timely manner and (b) the failure of the [the father] to facilitate communications between the child and his mother”.
v)In the Application filed on 17 March 2014, the mother sought leave to file “the Form 2 and supporting affidavit”.
vi)In the Application filed on 25 March 2014, the mother sought leave to file “the documents referred to in this Affidavit - including the vexatious litigant material attached [and] a recovery order for [the child] in minute form”.
vii)In the Application filed on 7 April 2014, the mother sought leave to file “the attached documentation on contempt of court by the [father] - Form 19 and supporting affidavit”
c)A Form 2A Response filed on 23 June 2015, which was dismissed on 3 July 2015. The Response was filed in response to the Form 2 Application of the Independent Children’s Lawyer filed on 12 January 2015 seeking: an injunction to restrain the mother (or her agents) from making complaints to professional bodies concerning the conducts of psychologists involved in [the child’s] care; and to amend an earlier order to allow the Independent Children’s Lawyer to provide (in additional to other material already provided for in the order) a copy of the orders made 28 August 2013 and 21 November 2014 to APHRA, the Legal Practice Complaints Committee or the West Australian Police in the event the mother (or her agents) made complaints of criminal or unprofessional conduct about the father, the Independent Children’s Lawyer or a professional involved in the proceedings. The mother’s Form 2A Response went far beyond this issue. The orders sought by the mother were as follows:
1.Sanction of the [father] for the deliberate failure to make full and frank disclosure in a reasonable time of relevant and key material in this case for an extended period of time (and even three months after the judgement [sic]).
2.Sanction of the [father] for swearing/affirming court documents claiming disclosure was complete and up to date when it wasn’t.
3.Sanction of the [father’s] legal counsel for failing to make full and proper disclosure of documents on behalf of their client for many years and knowingly releasing disclosure piecemeal (and continuing to represent the [father]) whilst drafting documents in a misleading and deceptive manner designed to pervert the course of justice.
4.Sanction of the [father’s] legal counsel for making representations to the Trial Judge that their client’s disclosure was complete and up to date (court record).
5.That the child … be returned to the child’s mother … with full residency and full responsibility.
6. The child be restrained by injunction from seeing [Dr H].
7.The ICLS and [father’s] Counsel be restrained by injunction from destroying, disposing of and/or in any way altering their files, records (electronic and/ or in paper form).
8.The ICLS, [father] and [father’s] Counsel be restrained by injunction from corresponding and/or communicating with [Dr H] in person and/or via an agent.
9.The [father] be responsible for the school and medical (including psychological and private health) related fees and expenses of the child (payable within 2 weeks of a written invoice to a nominated bank account specified by the [mother]). The [mother] to chose [sic] the service and school.
10.The [father] be responsible for paying 18% of his genuine income by way of child support to the [mother] - via a nominated account specified by the [mother].
11.The lawyers in this case be referred to the Legal Practice Board and Police for investigation.
12.[Dr H] be referred to APHRA and Police for investigation.
13.The [father] be compelled to attend upon a psychiatrist of the court’s choice before he has any further access/contact with the child.
14. That the application be heard in an expedited fashion.
15.The [father] and/or the [father’s] legal counsel and/or the ICLS/Legal Aid be responsible for the costs of the [mother].
16.The child and his belongings be instantly recovered from wherever his location is at the time of the order or at a destination specified by the court.
d)Three ex-parte Form 2 Applications filed on 11 March 2016, 31 May 2016 and 31 May 2016, all of which were dismissed on 31 May 2016.
i)In the Application filed on 11 March 2016, the mother sought leave to file an accompanying affidavit and proposed Form 2.
ii)In the Application filed on 31 May 2016, the mother sought leave to file “’updating’ affidavit to be heard in conjunction with the material to be heard on the 31/5/16”.
iii)In the other Application filed on 31 May 2016, the mother sought leave to file “an ammended [sic] proposed Form 2 (Annexure 17) of the Applicant’s affidavit sworn the 17 February 2016 & the supporting/updating affidavit in support of both the leave Application and the proposed Application”.
e)A Form 2 Application filed on 4 April 2016 and amended on 11 May 2016 and 26 May 2016 which related to both parenting and financial matters. The Amended Form 2 Application filed 26 May 2016 was dismissed without any orders being made in relation to parenting matters. The mother sought a range of orders, including an order for leave of the Court to file a further affidavit containing a psychological assessment of [the child] which she alleged was withheld from her and the Court.
f)An ex-parte Form 2 Application filed on 6 July 2016, which was dismissed on 7 July 2016. This Application sought leave to file a “Form 1, Form 2, Form 4 [and] supporting affidavit. The same affidavit is in support of the Proposed Form 2 [and] this leave application”.
11In addition to the applications already dealt with, there were numerous further ex-parte Form 2 Applications filed by the mother as set out below. On 19 March 2018, the mother filed an ex-parte Form 2 Application seeking leave to file updating affidavits of herself and [Mr C] to rely on in respect of her existing applications. I made directions in Chambers granting the mother leave to rely on the affidavits. The extant applications came before me for hearing on 1 August 2018. The Applications were as follows:
a)An ex-parte Form 2 Application filed on 28 July 2015 seeking leave to file a “Form 2 and supporting Affidavit”. The Form 2 Application the mother sought leave to file (which had in fact been accepted for filing on 28 July 2015) sought leave to photocopy some of the material produced pursuant to subpoena (some of which related to the property proceedings and some of which related to the parenting proceedings). The presiding Judicial Officer in Chambers granted leave to photocopy those materials which related to the property proceedings but refused leave to photocopy those materials which related to the parenting proceedings.
b)An ex-parte Form 2 Application filed on 14 September 2015 seeking leave to file a “Form 2, Form 4 and supporting Affidavits (one supporting this request for leave and one supporting the Application)”. The Form 2 Application the mother sought leave to file was incorrectly stamped as “filed” by the Court Registry. I also note bar the addition of one order, it was in exactly the same terms of the mother’s Form 2A Response filed on 23 June 2015, which was dismissed on 3 July 2015.
c)An ex-parte Form 2 Application filed on 19 January 2016 seeking leave to file “(a) a Form 2 /recovery orders for the child … to be returned to his mother with full responsibility and responsibility [sic] (and/or [Mr J] in the interim); [and] (b) the supporting affidavit.” The Form 2 Application the mother sought leave to file again was incorrectly stamped as “filed” by the Court Registry.
d)An ex-parte Form 2 Application filed on 10 October 2016 seeking leave to file a “Form 1, Form 2 [and] Form 4 with supporting affidavit” and a “Proposed Form 2 with supporting affidavit” which were included with her Application. The Form 1 Application, Form 2 Application and Form 4 Notice again were incorrectly stamped as “filed” by the Court’s Registry.
e)An ex-parte Form 2 Application filed on 3 February 2017 seeking leave to file “Form 2s [and] supporting affidavits sworn 1/2/17” and “a further Form 4, Form 19 etc. if required by the court”.
f)An ex-parte Form 2 Application filed on 31 July 2017 seeking leave to file a “proposed Form 2 and supporting Affidavit (sworn 20/7/17). The latter is supported by the content of the leave affidavit itself (also sworn on 21/7/17)”.
(As per the original)
In dismissing the application for leave to institute proceedings on 13 December 2018, the order the subject of this appeal, the primary judge recorded the central findings that:
a)the mother did not comply with s 102QE of the Act in respect of her affidavits supporting her application for leave;
b)the mother effectively sought to re-litigate matters already determined on a final basis;
c)the mother effectively sought to use the Court proceedings for an improper purpose and as an abuse of process; and
d)there was simply no merit in the mother’s applications.
Application in an Appeal filed on 24 January 2019
On 24 January 2019, the mother filed an Application in an Appeal to adduce further evidence, namely:
(a)the school report cards of the parties’ son;
(b)the unofficial academic transcript of the mother;
(c)the [K] High School (“[K]”) newsletter (11 December 2018);
(d)public records relating to staffing levels at [K];
(e)public records relating to student attendance declining at [K];
(f)an affidavit by the mother evidencing the key components of the performance enquiry of [K]; and
(g)an email received by the mother regarding [K’s] … ranking.
The affidavit filed in support of the mother’s application states the purposes for this material is to display the child’s falling academic success (Annexure 1), to show that the mother does not lack intelligence (Annexure 2) and documentation to, it appears, show that the choice of school by the father is inappropriate for the child (Annexures 3–5).
Section 93A(2) of the Act provides for the Full Court to exercise discretion to receive further evidence on appeal on questions of fact.
The principles governing the exercise of the s 93A(2) discretion to receive further evidence on questions of fact were extensively considered and discussed by the plurality of the High Court of Australia (McHugh, Gummow and Callinan JJ) in CDJ v VAJ (1998) 197 CLR 172. We are not persuaded that it would be in accordance with those principles to grant the mother’s application, for a number of reasons. First, the relevance of the academic transcript of the mother and the relevance of the documents that the mother seeks to advance purportedly in support of her criticisms of the child’s current school is not apparent. Second, the evidence or at least the facts or inferences the mother seeks to have drawn are disputed by the father in that the father would seek to have an opportunity to test the evidence and to respond to it and thus the admission of this evidence would inevitably involve a rehearing. Third, we are not persuaded that had any of this evidence been before the primary judge it would conceivably have affected the outcome determined by her Honour in the context of, and relative to, the previous determinations of Moncrieff J which will be further discussed later in these reasons.
In our judgment, the mother’s Application in an Appeal filed on 24 January 2019 ought be dismissed.
Grounds of appeal
In her Amended Notice of Appeal, the mother advanced no less than 40 stated grounds of appeal in support of both her application for leave to appeal and the appeal itself. However, many of these stated grounds lack sufficient particulars as to the precise error or errors sought to be asserted and are not proper grounds of appeal. Moreover, many grounds duplicated the same or similar complaints as are identifiable in other grounds.
Further, we reiterate that there was no appeal from the parenting orders determined by Moncrieff J on 28 August 2013 following that 25 day trial and the mother’s appeal from the further orders made by Moncrieff J on 21 January 2014, following the further trial, was dismissed as we have earlier noted. At least some of the grounds of appeal advanced with respect to the decision of the primary judge are, in reality, attempts by the mother to revisit evidence and findings on the evidence that were concluded by Moncrieff J. Obviously, the mother cannot be permitted in the context of this appeal to revisit complaints or issues or evidence that have been the subject of concluded determinations.
It appeared from those of the grounds which particularised asserted errors of the primary judge that the mother sought to advance two central challenges; the alleged failure of the primary judge to properly consider that the child had been removed from the jurisdiction when proceedings were pending, and that the primary judge failed to consider the adverse findings made by Walters J in the property proceedings with regard to the father. Indeed, at the hearing, the mother herself identified “the most important ones from my perspective seem to be [the child] being removed from the country” (Transcript 1 August 2018, p.62 lines 33–35).
Leaving aside the complaints of apprehended bias permeating the mother’s complaints, at the hearing of the appeal, we confirmed with the mother in relation to her numerous grounds of appeal that there appeared to be four central challenges or topics embraced by those grounds and which could legitimately be advanced. That process resulted in the mother agreeing that there were four central challenges or topics, embraced by her multiple grounds, and that she would attempt to advance her arguments by reference to these topics.
First, is the challenge to the effect that the primary judge failed to properly consider adverse credit findings made against the father by Walters J in the property proceedings. Second, is the challenge that the primary judge failed to properly consider what the mother characterises as deterioration in the child’s academic, social and other progress in the father’s care. Third, is the fact that the father took the child for a trip to Country L without reference to the mother. Fourth, is the complaint embracing several challenges about procedural issues – the delay in obtaining a hearing and the delay in the mother receiving reasons for judgment being foremost. Within the fourth complaint the mother again advances a challenge of apprehended bias on the part of the primary judge.
The mother agreed that these were the four main topics and endeavoured to address her oral arguments on the hearing of the appeal to these topics
Whilst the mother agreed at the hearing that she would endeavour to address her argument to each of these discrete topics, it became apparent that her complaints of procedural unfairness and apprehended bias permeated all of her complaints. For example, in addressing the first topic (Walters J’s credit findings) the mother contended that the primary judge’s alleged failure to properly consider Walters J’s findings evidences “a perception of bias” on the part of the primary judge. We will deal with the mother’s complaints about procedural unfairness and apprehended bias in association with our discussion of each other topic of complaint as identified.
As the approach taken by the primary judge provides important context particularly as to the complaints of procedural unfairness and apprehended bias, we will first set out that context.
Approach of the primary judge
Section 102QE(3) of the Act mandates, in subparagraph (b), that the affidavit which must be filed in support of an application for leave to institute proceedings:
(b)lists all other proceedings the applicant has instituted in any Australian court or tribunal, including proceedings instituted before the commencement of this section …
It is readily apparent that, as the primary judge recorded (at [26]), none of the affidavits relied upon by the mother in support of her application met the requirements of s 102QE(3).
However, the primary judge did not dismiss the application solely on the basis of want of compliance with the mandatory requirements of s 102QE(3) as was open to her Honour to do. Rather, as earlier noted, at [10] and [11] of the reasons, her Honour set out the extensive history of applications filed, and ultimately considered the mother’s application on its merits, notwithstanding the subject non-compliance.
Review of the transcript of the hearing before the primary judge on 1 August 2018 demonstrates that, confronted with a plethora of material, including affidavits of the mother which were aptly described by the primary judge as “ confused, repetitive and comprised the mother’s opinions, conclusions and submissions” (at [26]), her Honour nevertheless undertook painstaking efforts to identify with the mother precisely what proceedings the mother sought leave to advance and the relevance of evidence the mother sought to rely upon in support of her application. Those painstaking efforts are reflected in some 37 pages of transcript of the hearing. Having so identified those matters there were then these exchanges between her Honour and the mother (Transcript 1 August 2018, p.37 line 45 to p.38 line 43):
HER HONOUR: All right. So I understand now what is that you’re – what orders or what application you’re seeking to agitate or to litigate. All right. Now – all right. What I’m going to do is in a moment I’m just going to take a short mid-morning break so for 15 minutes. When we come back, effectively, that will then be the opportunity for you to then make your submissions to me referring to the evidence that you’ve identified that you’re seeking to rely upon in terms of effectively establishing why it is that I should grant you leave to commence these proceedings, remembering that it’s a two-stage process.
If I consider that, in fact, the application sought by you are not vexatious and that you tick off the boxes that you are required to do under the terms of the legislation, the next stage prior to giving your leave would be to give the [father] the right to be heard in relation to it. So it’s effectively a two-step process in that respect so that’s what we’re endeavouring to do. Now, as I’ve indicated, the matter is listed only for the day. We’ve identified the material in exactly the orders that are being sought so I’m not sure that we’re actually going to require the rest of the day in terms of the submissions.
[MS SPENCER]: Probably not.
HER HONOUR: Probably not. But I do want you to have, perhaps, you know, sort of, 15 or 20 minutes just to sort of clarify your thoughts, make sure that you take a break as well, go to the bathroom if you need to, so that you’re then read to effectively sort of make the submissions as to why you say ‑ ‑ ‑
[MS SPENCER]: Yes.
HER HONOUR: ‑ ‑ ‑ there is the appropriate merit and you overcome those initial bars in terms of it not being, in effect, a continuance of that finding in relation to being a vexatious litigant.
[MS SPENCER]: Yes.
HER HONOUR: Okay.
[MS SPENCER]: Yes.
HER HONOUR: All right.
(Short adjournment)
(As per the original)
After providing a short adjournment to the mother to frame her arguments the primary judge proceeded to hear the mother’s submissions.
Turning to the primary judge’s reasons for judgment, the primary judge set out at [2] the evidence sought to be relied upon by the mother (as a consequence of the process to which we have referred) and at [3]–[11] set out the relevant history of the litigation. At [14]–[25] her Honour detailed the law to be applied to an application for leave to institute proceedings pursuant to Part XIB of the Act. There is no challenge on appeal as to the primary judge’s identification of the relevant litigation history nor as to her Honour’s articulation of the applicable principles.
The primary judge’s conclusions were expressed as follows:
26None of the affidavits relied upon by the mother (as set out in paragraph 2 of these Reasons) properly met the conditions required under s 102QE(3). The affidavits were by and large confused, repetitive and comprised the mother's opinions, conclusions and submissions about matters. Nevertheless, four main themes emerged as follows:
27Firstly, the mother maintained that [the child’s] school reports evidenced that [the child] was not thriving and in particular, was performing below his “intelligence level”, was not meeting his academic potential and had gone backwards since kindergarten in 2013. I was not persuaded this was the case. I am satisfied that [the child’s] Semester 1, 2016 report for year 3 evidenced that he was making steady academic progress: in the main receiving “B’s” and “C’s” for his subjects. More importantly, the report evidenced that he consistently displayed a positive approach in his attitude, behaviour and effort at school. [The child’s] Semester 2, 2017 report for grade 4 and his Semester 1, 2018 report for grade 5 revealed that [the child] continued to make steady academic progress: again achieving “B’s” and “C’s” across all his grades. Again, the reports evidenced that [the child] often displayed a positive approach in his attitude, behaviour and effort at school.
28Secondly, the mother maintained that [the child’s] school reports and medical reports evidenced that [the child] had social issues and learning issues. In addition, she maintained that [the child] was suffering from [M Disorder] like symptoms, which she maintained are as a result of trauma based psychological harm to [the child] from not properly attaching to his father. I was not persuaded this was the case and considered that the mother’s allegations had no evidentiary basis and were entirely speculative.
29Thirdly, the mother maintained that the father had flouted the law by allowing [the child] to be taken to [Country L] for a short holiday with [his] father and step mother in or about January 2017. I was not persuaded that the father did so flout the law. The father was entitled to permit [the child] to travel outside of Australia for holidays pursuant to paragraphs 11, 12 and 13 of the final orders made on 21 November 2014, without the necessity of obtaining the mother’s consent.
30Fourthly, the mother maintained that the father breached the court orders, for example, by not providing her with photos of [the child], but instead giving her the on-line link to buy her own school photos. I was not persuaded this was the case and considered that the mother misinterpreted the November 2014 final orders.
31The mother's affidavits and her submissions strongly indicated that she continued to be “fixated” on the same issues identified by Moncrieff J in his “vexatious litigant decision”. These included:
a)The mother asserting that she had been unfairly treated by the “court system”, including by the ICL and various judicial officers at first instance and on appeal, and in effect seeking to re-litigate issues that had already been determined on a final basis.
b)The mother continuing to attempt to use the court proceedings to attack the father, for example by maintaining that he was fraudulent, dishonest, misleading and had failed to disclose relevant documents.
c)The mother continuing to attempt to use the court proceedings to attack various third parties who were not supportive of her world view (for example, [Dr H] and her father and step mother), for example, by alleging that they had been dishonest and/or deceptive and/or had colluded with the father and/or had breached court orders and should be punished by the court.
32The mother has not complied with s 102QE of the Act in respect of the matters that must be set out in an affidavit that supports her applications for leave. Irrespective of this, I also considered that the mother's applications were vexatious in that: (1) she effectively sought to re-litigate matters had already been determined on a final basis; (2) she effectively sought to use the court proceedings for an improper purpose, and as an abuse of process including to harass, annoy and attack the father and various third parties; and (3) there was simply no merit in the mother's applications. Accordingly, I dismiss the mother's applications for leave to institute parenting proceedings pursuant to s 102QE of the Act.
(Footnotes omitted) (Emphasis in original)
The first complaint – the findings of Walters J in the property proceedings
The first difficulty this complaint by the mother confronts is that review of the transcript of the hearing before the primary judge reveals that the complaint now sought to be agitated on appeal by the mother was not an argument the mother advanced to the primary judge (Metwally v University of Wollongong (1985) 60 ALR 68).
That aside, in argument the mother seeks to elevate adverse findings Walters J made about the father as a witness in the property proceedings and as to the father’s failures concerning disclosure, as having some kind of determinative significance about the integrity of the parenting proceedings determined by Moncrieff J, and the findings and conclusions reached by Moncrieff J. The essence of the complaint about the primary judge the mother seeks to advance is that the primary judge did not adopt that approach.
The relevant findings made by Walters J in his Honour’s 20 December 2017 reasons for judgment relied upon by the mother are these:
114I am well aware of the findings regarding the parties’ credibility made in the 2013 judgment and the 2014 judgment. Nevertheless, I did not find the [father] to be an impressive witness. While his impatience with the [mother] and his frustration with the ongoing proceedings in which he finds himself involved are understandable, I had discomfort with certain aspects of his evidence. For example, I am not satisfied that he was open and frank when giving evidence about motor vehicle accidents in which (for example) his mother had been involved, and the financial consequences of those accidents. He appeared to adopt the attitude that these matters were none of the [mother’s] business, and the less she (and, as a consequence, the Court) knew about them, the better.
115The [father] said he was aware of his disclosure obligations, and had made full and frank disclosure. I have no doubt that the [father] was aware of his disclosure obligations (which were discussed openly and in his presence on a number of occasions prior to the commencement of the trial), but I am far from satisfied that he was willing to meet them. He seemed to regard the [mother’s] property settlement claim as an inconvenience, if not an impertinence – and I find that he was certainly not prepared to go out of his way to make the property case simpler from the [mother’s] point of view. By way of example, I am satisfied that he made inadequate efforts to keep his disclosure relevant and up to date as time passed. Similarly, he suggested in evidence that certain statements related to accounts which were “not real” and that he “forgot” about them: see, for example, exhibits W27, W28 and W29. I do not accept his evidence in this regard. As well, he conceded that he had not disclosed certain “Statements of Position” which he prepared for P3’s bankers on an annual basis (see, for example, exhibit W32) and that he had not disclosed a finance agreement relating to the Territory.
116The [father] acknowledged that he had disclosed some documents late. In my opinion, some of the [father’s] disclosure was piecemeal, as well as being unjustifiably late. That is not to say that his disclosure was not substantial, and substantially complete – but there were gaps, and I find that the husband was well aware that there were gaps.
Whilst obviously adverse to the father, the findings recorded by Walters J (particularly at [116]), serious though they may be, did not extend to a finding that the father’s failure to disclosure was such that consequential adverse inferences were to be drawn, nor did the findings about the father extend to a finding that as a witness he was devoid of credit. Indeed, at [109(b)] of his reasons for judgment Walters J recorded:
… There is some truth in [the assertion that the [father] did not provide full and frank disclosure, or has attempted to distort his true financial position], but I am more than satisfied that the Court has sufficient information regarding both parties’ financial circumstances to make just and equitable property orders … I accept, however, that the assertions (by both parties) regarding inadequate disclosure … are relevant to any application … for a costs order …
The mother, in advancing her complaint on the hearing to the effect that the primary judge proceeded within “the rubric” of Moncrieff J’s judgments in the parenting proceedings, ignores the gravity of Moncrieff J’s findings concerning parenting issues and the mother’s conduct as a parent.
It bears emphasis that Moncrieff J’s undisturbed findings, earlier referred to, include findings as to grave forms of psychological and emotional abuse of the child perpetrated by the mother. The mother’s conduct of inculcating in the child the false belief that he had been physically and sexually abused by his father, “designed to destroy the possibility of [the child] having a relationship with his father” (Spencer & Spencer [2016] FamCAFC 212 at [8(a)]) is properly seen at the extreme end of the range of parental abuse of a child. The findings of Moncrieff J included that the mother gave knowingly false evidence. It thus requires no leap in logic as to why it was that the primary judge would, in the circumstances, focus upon the central findings and the outcome of the previous parenting proceedings determined by Moncrieff J in considering the mother’s application to institute proceedings to revisit parenting orders.
Moreover, as will be further discussed, the mother offered no evidence to suggest that she had addressed in any meaningful way her previous parental conduct as referred to. In these circumstances, mounting complaints to the effect that the child was not thriving in the father’s care, or that the father’s care was
sub-optimal, even were these things to be established, ring hollow.
No error on the part of the primary judge is demonstrated by her Honour’s focus upon the determinations of Moncrieff J made in the previous parenting proceedings given the grave nature and content of Moncrieff J’s determinations as referred to. That the primary judge did not, in these circumstances, place emphasis upon Walters J’s findings referred to in the property proceedings (having regard to the content of those findings) is unsurprising and does not reveal error on the part of the primary judge. Nor can the primary judge’s approach in this respect be characterised as founding any legitimate complaint, as the mother suggests, of apprehended bias on the part of the primary judge, the principles in relation to which are outlined later in these reasons.
This complaint has no merit and is rejected.
The second complaint – child’s travel to L Country
The mother contends, in summary, that her applications including her application under s 102QE for leave to institute parenting proceedings were “Part VII proceedings” under the Act for the purposes of the operation of s 65Y and s 65Z of the Act, such that a party cannot remove a child the subject of such proceedings from Australia. The mother complains that the father took the child to L Country, alleging this to be in breach of these provisions, and as a matter to be given significant weight by the primary judge in the determination of her application.
The mother’s complaint in this respect is entirely misconceived.
Subsection (2) of each of s 65Y and s 65Z confines the operation of the prohibition in subsection (1) in each section by specific provision that taking or sending the child from Australia is not prohibited if it is done in accordance with a Court order.
As is recorded by the primary judge at [5] the orders made by Moncrieff J on 28 August 2013 included an order that:
7. The father shall have sole parental responsibility for the said child.
Section 61B of the Act prescribes the statutory definition of “parental responsibility” as meaning “all the duties, powers, responsibilities and authority which, by law, parents have in relation to children”.
Subsequent to the order for sole parental responsibility in favour of the father made on 28 August 2013, Moncrieff J made these further orders on 21 November 2014, as are also identified by the primary judge at [7]:
1.For the avoidance of doubt, the sole parental responsibility order shall be taken to mean that:
a)only the signature of the [father] is required for all documents that a parent is ordinarily required to sign concerning a child; and
b)the usual requirement for the signature of both parents on documents, including all documents permitting and relating to international travel, be dispensed with and the [father’s] signature alone be accepted for all such purposes.
…
11.The [father] have liberty to remove the child from the Commonwealth of Australia for the purpose of holidays and, to that end, the necessity for the [mother]to consent to the issue of a passport for the child be and is hereby dispensed with.
12.Subject to any other requirements of the Department of Foreign Affairs and Trade, a passport be issued to the child to enable the child to leave the Commonwealth of Australia and any requirement for the [mother’s] consent for the issue of such passport be and the same is hereby dispensed with.
13.The [father] be at liberty to remove the child from the Commonwealth of Australia notwithstanding that the specific consent of the [mother] has not been obtained.
The primary judge’s conclusion at [29] was undoubtedly correct. Her Honour there said:
29Thirdly, the mother maintained that the father had flouted the law by allowing [the child] to be taken to [L Country] for a short holiday with her father and step mother in or about January 2017. I was not persuaded that the father did so flout the law. The father was entitled to permit [the child] to travel outside of Australia for holidays pursuant to paragraphs 11, 12 and 13 of the final orders made on 21 November 2014, without the necessity of obtaining the mother’s consent.
If more be needed, we are not persuaded that an application under s 102QE for leave to institute parenting proceedings under Part VII of the Act is itself “Part VII proceedings” within the meaning of s 65Z(1) of the Act. It is in fact an application brought under Part XIB of the Act for leave to institute proceedings.
The mother further contended that her applications to the High Court of Australia for special leave to appeal could be characterised as proceedings such that either s 65Y or s 65Z were enlivened. However, in an analogous context dealing with the operation of s 65X(2) where an appeal is on foot, the Full Court observed in Redmond & Stolz (Stay Appeal) [2015] FamCAFC 116:
40.For completeness, having regard to that permission to publish [under s 121 of the Family Law Act 1975 (Cth)], we would observe that unless and until the father obtains from the High Court a grant of special leave, it could not be said that an appeal is pending within the meaning of s 65X(2) of the Act.
To similar effect, unless and until the mother obtained leave to institute parenting proceedings, and such proceedings were instituted, it could not be said that there were Part VII proceedings on foot nor could it be said that prior to the grant of any special leave by the High Court of Australia that any relevant appeal proceedings were on foot.
We find no merit in this complaint.
The third complaint – the child’s presentation
The essence of this complaint is that the primary judge failed to adequately consider what the mother characterises as the child’s academic decline since the child has been in the father’s sole care, this being, on the mother’s contention, representative of the child’s overall decline.
However, it is readily apparent from the primary judge’s reasons for judgment that her Honour had before her, and considered, various school reports for the child including Semester 1, 2016, Semester 2, 2017 and Semester 1, 2018. At [27], the primary judge recorded:
27Firstly, the mother maintained that [the child’s] school reports evidenced that [the child] was not thriving and in particular, was performing below his “intelligence level”, was not meeting his academic potential and had gone backwards since kindergarten in 2013. I was not persuaded this was the case. I am satisfied that [the child’s] Semester 1, 2016 report for year 3 evidenced that he was making steady academic progress: in the main receiving “B’s” and “C’s” for his subjects. More importantly, the report evidenced that he consistently displayed a positive approach in his attitude, behaviour and effort at school. [The child’s] Semester 2, 2017 report for grade 4 and his Semester 1, 2018 report for grade 5 revealed that [the child] continued to make steady academic progress: again achieving “B’s” and “C’s” across all his grades. Again, the reports evidenced that [the child] often displayed a positive approach in his attitude, behaviour and effort at school.
(Footnotes omitted)
We are not persuaded of any error on the part of the primary judge in failing to consider this component of the mother’s case for leave.
Moreover, in this context it bears repeating that the findings adverse to the mother as to her parenting made by Moncrieff J were findings at the extreme end of the range of psychological and emotional abuse of a child perpetrated by a parent. Relative to the gravity of such findings, criticisms by the mother advanced against the father, and his care of the child, without any accompanying evidence suggesting that the mother has even attempted to address her parenting deficiencies, puts such complaints in their proper context.
We are satisfied that the primary judge properly considered and balanced the mother’s complaints as against the history of the litigation and importantly the undisturbed findings of Moncrieff J. We are not persuaded of any error on the part of the primary judge with respect to this topic.
The fourth complaint – denial of procedural fairness
The mother cites three examples of her asserted lack of procedural fairness:
1.the amount of time the Court took to hear the matter and deliver judgment;
2.the amount of time after it had been delivered for the judgment to be provided to the mother; and
3.the fact that two judges heard the matter meaning they were unable to adequately deal with her Form 4 applications (Notices of Risk).
There is no discussion in the December 2018 reasons to explain any delay between the filing of the mother’s application and the hearing. An order was made on 9 February 2016 which adjourned generally the relevant applications which had been filed up to that date. After that, there is the order dated 1 August 2018 dismissing all but the final two applications which was agreed to by the mother. It is unclear from the record what transpired between these dates, though the original judge with carriage of this file retired and the primary judge took over as docket judge.
Review of the record does not reveal anything done by the primary judge such as to cause or contribute to any delay in the matter being listed for hearing. Delays in matters reaching a hearing are an unfortunate result of limited resources, compounded here by the feature that one judge to whom the matter was docketed retired, but nothing which occurred here involves any denial of procedural fairness as a consequence.
The mother argues that the delay rendered her Form 4 applications (Notices of Risk) outdated. It is to be noted that all previous applications (15 applications were dealt with prior to the hearing before the primary judge) seeking the same, or largely similar orders, were dismissed. It is unclear what the mother argues is the procedural unfairness resulting from two judicial officers being involved in the proceedings. We are not persuaded of any procedural unfairness to the mother relevant to the outcome of the case.
The second matter raised in this complaint is largely devoid of specifics. The mother states that she was not provided with an electronic copy of the judgment and that it was not placed on the Court Portal until just “before Christmas”. There is an email for the mother on the Court file. In her Summary of Argument at page 3, the mother reiterates this, saying that the judgment was posted to her and “not made available by electronic means”.
We are unable to identify how anything done by the primary judge could constitute procedural unfairness to the mother. We fail to see how any of the delays pointed to by the mother were in any way material to the outcome. There is no substance in these complaints.
Complaint of apprehended bias
We have already dealt with the mother’s complaints to the effect that she was denied procedural fairness, many of which are revisited in the mother’s complaints of apprehended bias on the part of the primary judge.
Review of the litigation history in these proceedings reveals that the mother seemingly adopts the approach of alleging apprehended bias on the part of any judge or judges who decide an issue or proceeding adverse to her contention or who do not embrace her contentions as explaining the outcome. The principles concerning a claim of apprehended bias are well-settled and emphasise that simply because a judge decides an issue or case adversely to a party does not found a claim of apprehended bias. In Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at 344–345 (“Ebner”), Gleeson CJ, McHugh, Gummow and Hayne JJ observed:
Where, in the absence of any suggestion of actual bias, a question arises as to the independence or impartiality of a judge … a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide. That principle gives effect to the requirement that justice should both be done and be seen to be done, a requirement which reflects the fundamental importance of the principle that the tribunal be independent and impartial. It is convenient to refer to it as the apprehension of bias principle…
…
The apprehension of bias principle admits of the possibility of human frailty. Its application is as diverse as human frailty. Its application requires two steps. First, it requires the identification of what it is said might lead a judge … to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits…
(Footnotes omitted)
As to the “second step” referred to in Ebner, it must be recognised that tentative views expressed by a judge in the course of a hearing, or exchanges initiated by the Bench as part of active case management, are not in and of themselves indicators of prejudgment. As Gleeson CJ, Gaudron, McHugh, Gummow & Hayne JJ observed in Johnson v Johnson (2000) 201 CLR 488 at 493:
Whilst the fictional observer, by reference to whom the test is formulated, is not to be assumed to have a detailed knowledge of the law, or of the character or ability of a particular judge, the reasonableness of any suggested apprehension of bias is to be considered in the context of ordinary judicial practice. The rules and conventions governing such practice are not frozen in time. They develop to take account of the exigencies of modern litigation. At the trial level, modern judges, responding to a need for more active case management, intervene in the conduct of cases to an extent that may surprise a person who came to court expecting a judge to remain, until the moment of pronouncement of judgment, as inscrutable as the Sphinx. In Vakauta v Kelly Brennan, Deane and Gaudron JJ, referring both to trial and appellate proceedings, spoke of “the dialogue between Bench and Bar which is so helpful in the identification of real issues and real problems in a particular case”. Judges, at trial or appellate level, who, in exchanges with counsel, express tentative views which reflect a certain tendency of mind, are not on that account alone to be taken to indicate prejudgment. Judges are not expected to wait until the end of a case before they start thinking about the issues, or to sit mute while evidence is advanced and arguments are presented. On the contrary, they will often form tentative opinions on matters in issue, and counsel are usually assisted by hearing those opinions, and being given an opportunity to deal with them.
(Footnotes omitted)
We have, for the reasons already discussed, rejected the mother’s contention that the primary judge’s focus upon the earlier determinations of Moncrieff J in the parenting proceedings is capable of founding any legitimate claim of apprehended bias.
The mother also contends that apprehended bias is “self-evident by the timing and wording of the Judgement which effectively mocked the [mother’s] concerns including about the [father’s] lack of disclosure and dishonesty” (as per the original). We have already dealt with the question of timing of the judgment. It appears the mother’s complaint about timing resides in the feature that whilst judgment was delivered on 18 December 2018, the mother did not receive a copy of the judgment until shortly before Christmas, several days later. That cannot conceivably found a claim of apprehended bias on the part of the primary judge. Further, we reject that the “wording of the Judgement [sic] … effectively mocked the [mother’s] concerns”. There is nothing in the language used by the primary judge that conceivably amounts to any “mocking” of the mother’s case, as distinct from the legitimate rejection of her case.
The mother also argues that the primary judge’s failure to take into account a vast array of considerations amounts to apprehended bias. No further specifics are given for how this could be so. The mother also raises an issue with being ordered on 5 November 2018, to file a “document in the nature of a Statement of Claim” setting out her arguments with reference to the specific subsections of s 79A(1)(a) and that the judgment was delivered within days of this being filed. This is a section of the Act relevant to property proceedings and it has no relevance here to the outcome of the subject application.
The mother did not raise any issue of bias before the primary judge. Indeed, the primary judge raised the issue of any potential need to recuse herself with the mother at the hearing on 1 August 2018 where the following exchange occurred (Transcript 1 August 2018, p.3 lines 21–50):
HER HONOUR: All right. The fact that you have done so [appealed the decision in the property proceedings], in my view, doesn’t require me to recluse [sic] myself from dealing with this application; however, if you want to await the outcome of your appeal in relation to that costs decision, I am content to do so and to adjourn these various applications until such time as you have a result.
…
[MS SPENCER]: … I don’t see that there’s a need for you to recluse [sic] yourself, because this is predominantly the children’s - - -
HER HONOUR: Yes.
[MS SPENCER]: - - - and where we’ve had the confusion is the case has been split.
Nothing identified by the mother in support of her argument about apprehended bias suggests that a fair-minded lay observer might reasonably apprehend that the primary judge might not bring an impartial mind to the resolution of the application her Honour was required to decide. That is, the mother does not identify anything which might support a conclusion that the primary judge might decide the case other than on its legal and factual merits and nor does the mother articulate any logical connection between any matter of which she complains and the feared deviation from the course of deciding the case on its merits. Nor is there anything contained in the reasons for judgment of the primary judge to support the mother’s claims.
The claims of apprehended bias are rejected.
Further Application in an Appeal filed on 27 August 2019
Reference has earlier been made to the orders the mother seeks on this application.
At the core of this application and so-called “new” evidence the mother seeks to adduce on appeal is the fact that the father, with the assistance of his lawyers, lodged a formal complaint with the Australian Health Practitioner Regulation Agency (“AHPRA”) in June 2014 concerning the conduct of one Dr N, psychologist, whom the mother involved in so-called therapy or counselling sessions with the child between about September 2011 and May 2012. Dr N gave evidence in the trial leading to the orders of Moncrieff J made on 28 August 2013. Relative to the father’s formal complaint to AHPRA, the ICL provided to AHPRA the orders and reasons for judgment of Moncrieff J on 28 August 2013, as Order 17 of his Honour’s orders expressly authorised.
The mother was not privy to the fact that this complaint was made. However, nothing required her to be so privy. Nevertheless, in yet another attempt to revisit the parenting orders, the mother seeks to characterise the fact that she was not informed of the formal complaint at the time as “suppression of evidence” resulting, so she contends, in a “miscarriage of justice”.
It is necessary to make some further reference to detail contained in the reasons for judgment of Moncrieff J delivered on 28 August 2013 (Spencer & Spencer [2013] FCWA 86) to demonstrate that the mother’s complaint is devoid of any substance.
At [53] of those reasons for judgment, Moncrieff J recorded:
53On 20 September 2011 [the child] was first seen by clinical psychologist [Dr N]. [Dr N’s] involvement in this matter and conduct as a psychologist were, at the lowest end of the scale, in breach of her ethical obligations and professional standards, and, at the highest end of the scale, utterly unprofessional and extraordinary. As I will set out later in these reasons [Dr N] demonstrated no objectivity and did not maintain professional or appropriate boundaries between herself and her client (although she appeared to be confused as to who her client actually was) and in my finding, for the reasons I give later, was conflicted and personally engaged in the matter.
At pages 87 to 163 of those reasons Moncrieff J discusses the evidence of Dr N in extensive detail, including as to Dr N’s involvement, and her manipulation by the mother, in the false construct concerning the sexual abuse allegations levelled against the father. It may fairly be observed that the discussion by his Honour is littered with trenchant criticisms of Dr N.
That discussion culminates in the finding at [365] as follows:
365I have such grave concerns regarding [Dr N’s] professional competence that I consider it appropriate that a copy of these reasons be made available to the Australian Health Practitioner Regulation Agency (“AHPRA) and I propose to make orders authorising the release accordingly as I am of the view that [Dr N] would significantly benefit from supervision, support and further education.
(As per the original)
Reference has earlier been made to his Honour’s finding at [857] which was in the following terms:
857I further find that the mother has allowed [the child] to be abused in the context of his “therapy” by [Dr N], who has so embraced the position of the mother, which has been relentlessly fed to her without challenge. [Dr N] became a reinforcement for the falsely held beliefs and I propose to continue the injunction restraining [the child] coming into contact with [Dr N] permanently.
The orders made by Moncrieff J on 28 August 2013 include (Order 12) a permanent injunction restraining the mother from bringing the child into contact with or permitting any communication between the child and Dr N and Orders 17 and 18 of those orders are in these terms:
17The Independent Children’s Lawyer be at liberty to provide a copy of the judgment delivered this day to:
(a)the Australian Health Practitioner Regulation Agency (“AHPRA”);
(b)to the extent not covered by Section 121 of the Family Law Act 1975, the Legal Profession Complaints Committee of the Legal Practice Board of Western Australia;
(c)any therapist engaged in therapy for either of the parties or the said child;
(d) the Department for Child Protection and Family Support;
(e)should any further criminal complaints be made by the mother about the father, the Commissioner of Western Australia Police, if requested by the investigating officer; and
(f) any contact service working with the family.
18A copy of the transcript of the evidence of [Dr N] be provided to AHPRA in the event that a request is made to the Court by AHPRA.
The father, as was his right, lodged a formal complaint with AHPRA concerning Dr N in June 2014.
Dr N’s involvement in any “therapy” with the child had ceased in about May 2012 and indeed an interlocutory injunction had been made in about June 2012 preventing any further interaction between the child and Dr N. Moreover, Dr N’s involvement as a witness ended in the proceedings culminating in the orders made by Moncrieff J on 28 August 2013. Dr N’s relevant involvements, including as a witness, ceased long before the June 2014 complaint to AHPRA.
It is therefore absurd for the mother to contend that because she did not know at the time about the formal complaint made to AHPRA she was denied access to relevant evidence in the proceedings thereafter. Equally absurd are the mother’s contentions that some kind of conspiracy operates as between the father’s lawyer, the ICL and various judicial officers.
The mother’s attacks upon the integrity of the legal representatives of the father and the ICL are unsustainable.
The reality of this application is that it is no more or less than another attempt by the mother to revisit the determinations of Moncrieff J as reflected in his Honour’s orders and reasons of 28 August 2013 and the final parenting orders.
Receipt of this material could not possibly have altered the determination of the primary judge in the subject application and there is no basis for receiving this material as further evidence as to facts on appeal, nor to reopen the application for leave to appeal on the basis of this so-called “new” evidence.
The application will be dismissed.
Further Application in an Appeal filed on 10 June 2020
As earlier referred to, on 5 May 2020 this Court made directions as to the filing by each party of written submissions concerning the mother’s Application in an Appeal filed on 27 August 2019.
As also earlier referred to, the mother filed written submissions on 18 May 2020, the father filed written submissions on 26 May 2020 and the mother filed written submissions in reply on 2 June 2020.
Despite the directions being confined to the filing of written submissions, and making no provision for the filing of any affidavit, the mother attempted to file with her reply submissions an affidavit.
The Appeal Registrar refused to accept the affidavit for filing given that the subject directions were confined to the filing of written submissions and contained no provision for the filing of an affidavit.
By a further Application in an Appeal filed on 10 June 2020, the mother seeks to review the Appeal Registrar’s decision not to accept her affidavit for filing and that this Court receive her affidavit.
It is unnecessary for this Court to formally determine the legitimacy or otherwise of the mother’s attempt to file a further affidavit, or whether the Appeal Registrar’s decision ought be reviewed. That is because nothing contained in the subject affidavit or its annexures, which we have reviewed, would cause us to alter in any way any of the above conclusions we have expressed, either with respect to the Application in an Appeal filed on 27 August 2019 or otherwise.
The application will be dismissed.
Conclusion and costs
There being no merit in any of the mother’s complaints the application for leave to appeal is to be dismissed.
Within those of the reasons of Kent J at [27]–[35], adopted by each of Aldridge J and Duncanson J, in the reasons delivered on 5 May 2020 (Spencer & Spencer (No. 2)) with respect to the mother’s application that each of the Judges disqualify themselves, are details concerning the father’s claim for costs in the event the appeal were to be dismissed and the relevant excerpt from the transcript of the appeal hearing when the question of costs was being dealt with.
We adopt, without unnecessary repetition, that summary as part of these reasons.
As can be seen, the father claimed a fixed sum of $9,022.94 for his costs of and incidental to the appeal proceedings in the event that these were to be dismissed.
Rule 19.18(1)(a) of the Family Law Rules permits the Court to make an order for costs of a specific amount rather than having the costs assessed. The principles as to fixing an amount for costs identified by Einstein J in Idoport Pty Ltd v National Australia Bank Ltd, Idoport Pty Ltd v Donald Robert Argus [2007] NSWSC 23 have been adopted by this Court (see, for example, Stopford Malloy & Malloy and Anor (Costs) [2018] FamCAFC 6).
Section 117 of the Act provides the source of power to make an order for costs and sets out the relevant considerations to be taken into account.
It appears that the mother is unemployed and receives Centrelink benefits despite holding several degrees including an O Degree, a P Degree and a post-graduate degree in Q and she has also completed a course in R Law. We understand it to be the mother’s contention that despite her qualifications she is unable to work owing to, as she puts it, the “miscarriage of justice” in the parenting proceedings.
The father remains in a partnership running a farming property.
Reference has earlier been made to the outcome of the financial/property proceedings. Reference has already been made to the extraordinary amount of costs each party has expended throughout the history of these proceedings.
Whilst it is likely that the financial circumstances of the father are superior to those of the mother, her application for leave to appeal has been wholly unsuccessful. Impecuniosity ought not be a bar to an order for costs where a meritless application puts the other party to expense.
In argument on the question of costs, the mother advanced no particulars as to why any particular item claimed by the father in his itemisation of costs ought not be allowed either as to the item claimed or the amount claimed for it. The mother identified no cogent reasons as to why the claim should await assessment by a Registrar.
Given the relatively modest total of the father’s claim we are satisfied that it is appropriate to order that the mother pay the father’s costs of and incidental to the application for leave to appeal in the amount particularised.
I certify that the preceding one hundred and thirty (130) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Aldridge, Kent & Duncanson JJ) delivered on 12 June 2020.
Associate:
Date: 12 June 2020
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