Spencer and Spencer (No. 3) - [2020] FamCAFC 145

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
re-agitate issues already decided – Applications dismissed.

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

2010

APPEAL NUMBER:

WEA

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2020] FamCAFC 145
Decision Date: 12 June 2020

CaseChat Overview and Summary

The proceedings in Spencer and Spencer (No. 3) involved an appeal application from the mother against orders made by the Family Court of Western Australia, which included a declaration of the mother as a vexatious litigant. The mother sought to challenge final parenting and property orders made in 2013 and 2017 respectively, arguing that the primary judge erred in dismissing her application to institute fresh parenting proceedings. The mother had previously been found to have abused her child emotionally and psychologically and was declared a vexatious litigant in 2014.

The legal issues before the court included whether the mother's application for leave to appeal met the requirements under section 102QE(3) of the Family Law Act 1975 (Cth), and whether the primary judge's dismissal of the mother's application was justified. The court had to consider whether the mother's complaints on appeal evidenced any error on the part of the primary judge, and whether the mother's applications were attempts to re-agitate issues already decided by the Court. Additionally, the court examined the merits of the mother's separate applications filed in the appeal, which sought the recusal of the bench, the introduction of further evidence, and a review of decisions by a Registrar.

The court found that the mother's application for leave to appeal did not comply with the statutory requirements, as it was discursive and sought to re-agitate issues already decided by the Court. The court noted that nothing in the mother's application demonstrated any error on the part of the primary judge, and concluded that the mother's complaints were another example of her vexatious litigation. The court dismissed the mother's application for leave to appeal and found that the mother's other applications in the appeal were devoid of merit and intended to re-agitate already decided issues. Consequently, the court dismissed all of the mother's applications and ordered her to pay the father's costs in a fixed sum.

The orders of the court included the dismissal of the mother's application for leave to appeal, as well as her three subsequent applications in the appeal. The court also ordered the mother to pay the father's costs of and incidental to the application for leave to appeal in the fixed sum of $9,022.94 within thirty days of the orders. The form of the order was subject to entry in the Court’s records.

Orders

Orders of the court

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.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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