Spencer (No 2)
[2023] FedCFamC1A 92
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Spencer (No 2) [2023] FedCFamC1A 92
Appeal from: Spencer & Spencer [2023] FCWA 24 Appeal number(s): NAA 49 of 2023 File number(s): PTW 7180 of 2010 Judgment of: ALDRIDGE, TREE & O'BRIEN JJ Date of judgment: 13 June 2023 Catchwords: FAMILY LAW – 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 proposed appeal is vexatious as it lacks reasonable prospects of success – Where there is no doubt attached to the primary decision warranting the grant of leave to appeal – Application dismissed. Legislation: Family Law Act 1975 (Cth) ss 102Q, 102QB, 102QE, 102QF, 102QG
Federal Circuit and Family Court of Australia Act 2021 (Cth) s 28
Cases cited: Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63
Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48
Medlow & Medlow (2016) FLC 93-692; [2016] FamCAFC 34
Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17
Reid v Commercial Club(Albury) Ltd [2014] NSWCA 98
SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668
Spencer & Spencer [2018] FCWA 249
Spencer & Spencer [2022] FCWA 148
Spencer [2022] FedCFamC1A 131
Number of paragraphs: 22 Date of hearing: 1 June 2023 Place: Heard in Perth, delivered in Sydney The Applicant: Litigant in person ORDERS
NAA 49 of 2023
PTW 7180 of 2010FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MS SPENCER
Applicant
order made by:
ALDRIDGE, TREE & O'BRIEN JJ
DATE OF ORDER:
13 june 2023
THE COURT ORDERS THAT:
1.Provisional Exhibits 1, 2, 3 and 4 are admitted into evidence on the hearing of this Application in an Appeal.
2.The Application in an Appeal filed on 9 March 2023 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).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Spencer (No 2) has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
ALDRIDGE, TREE & O’BRIEN JJ:
INTRODUCTION
On 9 February 2023, the primary judge refused leave for Ms Spencer (“the mother”) to institute parenting proceedings under s 102QE of the Family Law Act 1975 (Cth) (“the Act”). Now, by Application in an Appeal filed 9 March 2023 the mother seeks leave to file a Notice of Appeal from that refusal.
For the reasons which follow, the application for leave will be dismissed.
BACKGROUND
On 28 October 2014, an order was made under s 102QB of the Act prohibiting the mother from instituting any further child related proceedings without the prior grant of leave to do so.
Thereafter, the mother has made numerous applications under s 102QE, the first being filed on 19 November 2014, barely three weeks after the s 102QB order was made (see Spencer & Spencer [2018] FCWA 249 at [10]–[11]). All of those applications have been dismissed.
One of those earlier applications was an application for leave to file a Notice of Appeal from an earlier order of the primary judge deciding leave under s 102QE (see Spencer & Spencer [2022] FCWA 148 and Spencer [2022] FedCFamC1A 131 (“Spencer”)).
This current Application in an Appeal seeking leave to file an appeal appears to be the twenty-second s 102QE application which the mother has filed.
THE PRIMARY JUDGE’S REASONS
It is convenient to set out the primary judge’s reasons for refusing leave:
5.The mother now again seeks leave to institute further parenting proceedings pursuant to s 102QE of the Act in relation to the child. As required by the legislation, the mother filed an affidavit sworn on 22 December 2022 in support of her application for leave (Affidavit). Pursuant to s 102QE(3) of the Act, the Affidavit must address certain specified information. On its face, the Affidavit purports to comply with these requirements.
6.The mother also filed an amended proposed Form 1 application dated 18 December 2022. The document is identical to those filed with her earlier leave applications, save and except for a handwritten amendment to one of her interim orders sought. In effect, that amendment seeks that that the father be compelled to re-enrol the child at [T School]. The balance of the final and interim orders sought by the mother, if granted leave, were summarised in my reasons for decision in relation to the mother’s first 2022 application at [5] and [6] as follows:
5.The mother’s proposed Form 1 application seeks a suite of final orders, including that: (1) “residency and full responsibility” for [the child] be returned to the mother and her husband [Mr C] (husband); (2) the father be responsible for specific financial expenses related to the child, including top level ancillary and hospital health insurance, education related expenses (including private school fees, boarding costs and other related expenses); (3) the father be restrained by injunction from being involved in any medical and health related decisions concerning the child; (4) child support be paid by the father to the mother at a rate to be calculated on the father’s “genuine income rather than child support agency assessment”; (5) contact between the father and child be determined by the court after hearing the matter; (6) the costs of the matter be paid by the father; and (7) any financial re-adjustment eg section 79A application resulting from the father’s non-disclosure of material evidence be determined after the child related proceedings are finalised.
6.If granted leave, the mother also seeks a suite of interim orders in her proposed Form 1 application, including that: (1) the child’s passport be delivered up to the court and the father be restrained by injunction from remove the child from Western Australia; (2) the father be restrained by injunction from changing the child’s school enrolment from [T School] (School); (3) the mother and her husband be permitted to visit the child at School; (4) the child spend time with and have electronic communications with the mother and her husband; (5) the child’s school reports, assessment feedback, NAPLAN results and psychological/specialist assistance be disclosed to the mother directly and expediently from the School; and (6) the mother and her husband be permitted to assist the child with his study requirements.
7.The mother also filed a proposed Form 2 application dated 22 December 2022. This document seeks a number of orders if leave is granted, including that: (1) the father be required to re-enrol (and meet expenses for) the child at [T School] and [T School] boarding school; and (2) the Court exercise its “inherent power” to “address the harm (including financial) caused to the [mother] by the denial and delay of other parties”.
8.I refer to, and adopt for the purposes of this decision, my reasons for decision in relation to the mother’s first 2022 application. Those reasons in turn referred to and adopted my 2018 Decision which:
(1) comprehensively sets out the background facts in this matter; and
(2) sets out the applicable law (at [14] to [25] thereof).
Discussion and conclusions
9.As permitted by the Act, this application has been determined by me in chambers without an oral hearing.
10.As with the affidavits filed in support of her recent applications for leave, and notwithstanding that the Affidavit purports to comply with the requirements of s 102QE(3) of the Act, the Affidavit consists largely of the mother’s beliefs and suspicions about various matters related to the conduct of the proceedings.
11.The mother makes a number of allegations in the Affidavit regarding various matters relating to the proceedings. Many of the allegations have featured in the mother’s previous affidavits and deal with historical aspects of the proceedings. In short, the allegations are broadly as follows.
12.Firstly, the mother raises an issue with what she alleges is a delay on the part of the Court to process documents filed by her in relation to the proceedings. Particularly, she refers to the filing of documents evidencing the failure of the child on a NAPLAN test and an apparent delay by the Court in uploading this document to the electronic eCourts file.
13.Secondly, the mother continues to make allegations about the conduct of the proceedings, including the presence of bias and the unfair treatment of the mother by the court system.
14.These allegations have been consistently repeated in the mother’s evidence in seeking leave to institute further proceedings and were discussed in my 2018 Decision and in my decision in relation to the mother’s first 2022 application for leave.
15.It appears therefore that the only issue not already canvassed by the mother in her earlier applications for leave to institute further proceedings relates to the father’s decision to change the child’s enrolment from [T School]. In respect of this change, the mother alleges the “removal of the child from school and boarding school and the social support network is a dramatic and destabilising influence on a young adolescent whose primary attachment relationships were deliberately destroyed”.
16.In support of this, the mother again raises concerns regarding the child’s academic performance and what she says is an absence of “effective and timely assistance” for the child. I note that the mother has previously raised this issue, including as a basis for seeking leave to institute further parenting proceedings. The mother appears to acknowledge this in the Affidavit, where she states that she “has been put to the further expense and distress of repeating her concerns about her child”.
17.As discussed at paragraph [11] of my reasons for decision in relation to the mother’s first 2022 application, I am not persuaded that the child’s school reports are consistent with any such concern. The child’s Year 9 Semester 2 school report annexed to the Affidavit is largely consistent with his earlier reports from Year 8, such that the child continues to make steady academic progress, albeit he is not a strong student academically, and enjoys positive relationships with his peers. While the mother contends that a change of enrolment from [T School] will necessarily disrupt this progress and have negative consequences for the child, I am not satisfied that this is the case. Other than the mother’s belief and speculation, there is no cogent evidence in support of this allegation.
18.I also observe at this point that the final parenting orders made on 21 November 2014 provide that the father is to have sole parental responsibility for the child and accordingly, the child’s school enrolment and any change to the same is properly the subject of the father’s discretion. Further still, there is no obligation on the father to maintain the child’s enrolment at [T School].
19.Pursuant to s 102QF(2) of the Act, I must dismiss the mother’s application for leave if the intended proceedings are vexatious proceedings. Alternatively, pursuant to s 102QG(4) of the Act, I may grant leave only if satisfied that the proceedings are not vexatious proceedings. The mother bears the burden of proving that the intended proceedings are not vexatious. The evidence upon which the mother relies does not support the making of orders in terms of her proposed Form 1 application or her proposed Form 2 application and she has not demonstrated that there are reasonable grounds upon which those orders would be made. The mother has failed to demonstrate that the proposed proceedings are not vexatious. Leave will not be granted to the mother to file her proposed Form 1 application.
(Emphasis in original) (Footnotes omitted)
LEGAL PRINCIPLES
It is convenient to repeat what the earlier Full Court said in Spencer at [7]–[13] as follows:
7. 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)).
8. 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.
9.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)).
10.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
11.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)).
12. 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.
13.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”.
(Emphasis in original)
THE PROPOSED FURTHER EVIDENCE
At the hearing of the Application in an Appeal, the mother sought to rely upon four further documents. The first was a printout of some Facebook posts which suggest that the child is now attending a particular regional high school. The second were some extracts of information pertaining to that school, which show very few students in the child’s year, and a small number of high school enrolments in total. The third was an extract from Volume 61 of the Family Court Review. The fourth was an extract from an article dealing with what is described as “ambiguous loss”, which seems to be a term to describe loss of a significant relationship accompanied by a lack of certainty about the absent person’s presence.
Although we can discern little, if any, relevance of that material to the Application in an Appeal, we are nonetheless content to formally admit it, and shall discuss it if occasion arises when considering the several proposed grounds of appeal.
CONSIDERATION
The proposed appeal extends to some 11 grounds as follows:
1.Judicial bias. This bias is not restrained to the physical presence of [the mother]. This is evident by:
Fundamental attribution error and group bias – [U Group] bias and their operating agendas within the family court system have the perception of an “echo effect” whereby no independent and/ or impartial assessment of the facts of the case can be made.
(a)confirmatory bias – [the primary judge] interpreted the facts of the case through a lens of bias and was unable and/or unwilling to recognise or interpret the facts of the matter other than by demonstrating her existing beliefs with illogical results. In addition, the [primary judge] also appeared to not recall the reported killing of pets belonging to [the mother] and her family (in documents heard by herself about the time of the child sitting the “failed” NAPLAN). Highly relevant comments by the child’s teachers were also ignored to suit the [the primary judge’s] fabrication that the child was not accademic. New information that contradicts [the primary judge’s] existing beliefs continues to be ignored.
(b)availability bias – [the primary judge] failed to take into account that the child's residence and current school is unknown. Subject to ex-parte communications the assumptions underlying the decision that the removal of the child from one of the best private schools in WA is in the child’s best interest is mere speculation on the part of a judicial officer. Again, the focus was on what the Respondent could do rather than the child’s rights and needs. [The primary judge’s] comments appear to be very shortsighted considering available heuristics rather than wider facts of the case. A reasonable bystander knowing something about the case would also be aware that it was [the primary judge’s] view that it was legally permissible for the Respondent to send the child out of the country with a third party without telling the mother etc. Again, the harm deliberately caused by the Respondent’s conduct/omissions is not taken into account by the Court. The Respondent’s attempts at coercive control and abuse of [the mother] is in effect condoned by the Court. NO one has confirmed the safety or location of her child.
(c)representative bias – [the primary judge] viewed [the mother] as a self-litigant without merit and impugned the selflitgant’s intelligence & accademic standing to write a judgement that was NOT supported by the evidence presented by credible independent parties. It could be argued that the judgement was written to match a negative conclusion. Demonstrable prejudice and systemic discrimination against non [U Group] self-litigant.
(d)self-serving bias - Essentially a blatant refusal to consider the harm caused and being caused to an innocent child as a result of the [U Group] experiment. Perception of bias compounded by the inciduous majority of undisclosed [U Group] operating with the Family Court jurisdiction - promotional/ financial and personal gain have appeared to become paramount to the legal principles of justice, best interests of the child and evidence based judgement.
(e)anchoring bias: assumptions made appear to be continually linked back to the original Judgement of Moncrieff J, ignore the [U Group] involvement and agendas, ignore the lack of procedural fairness extended and above all fail to acknowledge and address the harm caused to an innocent child.
(f)Potential actual bias: the collective findings of [the primary judge] were so removed from the evidence presented to give the perception of another crafted judgement without evidentiary basis.
2.Extreme misunderstanding of the facts of the case by [the primary judge] leading to substantial errors of law. Subsequently, there was an ongoing failure to acknowledge or assist a child in need. That child’s needs have NOT been met - despite his increasing age and experiencing adolescence.
3. Confirmatory bias: See Part C above
4.Availability bias – [the primary judge] appeared to focus on her previous assumptions to make decisions about the case rather than accomodate the new evidence. [The primary judge] failed to take into account the literacy failure of the child, the OLNA tests pending and the long term ramifications of the child’s decline. Instead, this was overlooked as steady progress.
5.Self serving bias - the child’s failure was attributed to him not being accademic rather than the myrid of learning obstacles the Court imposed or permitted the Respondent father to place on the child (external factors) - with the assistance of Court appointed [Dr H] and ICL […] (now Magistrate in same Court).
6.Cognition of [the primary judge] appeared to have been affected by peripheral agendas rather than the central facts of the matter. Put bluntly, the [U Group] agenda (now [V Organisation]) applied to the case has been followed to the contradiction of facts/law - reinforcing a lack of accountability and undermining due process.
7.The fact that the child’s location has not been updated in deliberate breach of court orders is juxataposed as to the whim of the father’s alleged reasonableness is removing a child from school - again.
8.The undisclosed role of the father’s alleged partner (teacher’s aide - another change of circumstance) also raises not just questions of perversion of justice, but also highlights the serious harm imposed on a child by failing to teach him basis literacy. [The primary judge] failed to consider that the child’s ability is the result of nurture and nature/environment. The child was assessed as having the ability and intelligence. There is no credible evidence of the child obtaining genuine, effective and sustained assistance. The child’s deterioration commenced in the father’s alleged sole care. Contrary to [the primary judge’s] opinion, numerous school professionals reinforced that the child had the accademic ability.
9.A reasonable bystander in this case would perceive bias. Since, everyone uses cognitive heuristics and shortcuts to make decisions and save resources that bystander would have an understanding of the nuances of psychological biases used - even if the same terminology is not adopted.
10.The judgement is not based on the credible and independant evidence on the child’s accademic and psychosocial behavioural characteristics. This mode of operation has prevented the child from timely assistance and benefited other parties for their roles in the denial.
11.[The mother] had and clearly has merit. The decision is plainly wrong. Justice has miscarried. Justice has not been seen to be done and/or done.
(As per the original)
Leaving aside the bias grounds, it is immediately apparent from even a cursory examination of the other grounds that the mother appears not to appreciate that the primary judge dismissed her application because she had failed to persuade her Honour that “the proposed proceedings are not vexatious” (at [19]). To have even the remotest prospects of success, the proposed appeal would need to challenge that conclusion. The closest that the mother’s grounds get to doing so is in Grounds 10 and 11, however even they simply telescope forward into a repetition of the mother’s assertions before the primary judge, rather than any challenge to her Honour’s conclusion that the allegations “have been consistently repeated” in the earlier proceedings (at [14]). The only new matter before the primary judge was the child’s change of school, although the mother’s concerns about the child’s academic achievement had been previously raised (at [16]).
The mother’s new material adduced before us goes somewhat to identify the likely school which the child is now attending, however that speaks little, if at all, to the correctness of the primary judge’s conclusion at [17] that she was not satisfied that the change of schools “will necessarily disrupt [the child’s] progress and have negative consequences for the child”. Grounds 10 and 11 are therefore misconceived, and doomed to fail, as are Grounds 2, 6, 7 and 8.
The remaining grounds (Grounds 1, 3, 4, 5 and 9) contend a rather bewildering array of alleged bias, most of which appears to not be recognised at law. That said, we are content to address them on the basis that some appear to contend actual bias (for example Ground 1(f)) and others perhaps raise apprehended bias (for instance Ground 1(a)).
Before us, the mother’s actual bias argument appeared to distil to an assertion that the primary judge dismissed all the mother’s contentions as simply her “belief and speculation” (at [17]), but that is quite inadequate to establish actual bias. Indeed, we are at a complete loss to understand how the primary judge demonstrated actual bias, such that her Honour approached the application “so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented” (Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at [72]). The mere fact that the mother’s application failed is insufficient (SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668; Reid v Commercial Club(Albury) Ltd [2014] NSWCA 98).
In the mother’s oral submissions to us, the myriad grounds asserting other kinds of bias were distilled to two basic contentions of apprehended bias. The first was that, because the former Independent Children’s Lawyer (“ICL”) in the principal proceedings, which concluded in 2014, had later been an acting family law magistrate (and the primary judge had at some time also been a member of that Court), and because later still – well after the 2014 orders – that ICL had been appointed to the Family Court of Western Australia (of which the primary judge was also a member), a fair minded lay observer might reasonably apprehend that in refusing the mother’s application for leave, the primary judge was “covering” for the former ICL because she was a current and former colleague, and more generally, protecting the reputation of the Family Court of Western Australia and that state’s family law system. We firmly reject that a fair minded lay observer might draw that conclusion from those facts, as it is fanciful.
The second was that the primary judge did not appear to place weight upon the shooting or mistreatment of the animals which the mother (and her husband and mother) owned, which had historically coincided with imminent court events in these proceedings. Indeed it appears correct that the primary judge did not see any connection between those allegations and the proceedings, and although we accept that the mother likely believes that there is, we are quite unable to see it ourselves.
Whether by reference to those matters, or the mother’s material generally, we are quite unable to see how it could be even faintly argued that “a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide” (Johnson v Johnson (2000) 201 CLR 488 at [11]). Indeed it is not possible to ascertain precisely what it is said might have led the primary judge to decide the application for leave other than on its legal and factual merits, much less any logical connection between any such matter and the feared deviation from the course of deciding the case on its merits (Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337).
The bias grounds are all without merit.
Lacking any reasonable prospects of success means that the proposed appeal is vexatious, as defined in s 102Q(1), thus compelling the dismissal of the application for leave to bring it (s 102QF(2)) or at least confirming that the mother has failed to demonstrate that the proposed appeal is not vexatious (s 102QG(4)).
There being no doubt attached to the primary decision, leave to appeal under s 28 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) would in any event be refused (Medlow & Medlow (2016) FLC 93-692).
OUTCOME
The mother’s Application in an Appeal filed 9 March 2023 is dismissed.
I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Aldridge, Tree & O'Brien. Associate:
Dated: 13 June 2023
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