Spencer (No 2)

Case [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 2010

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION
BETWEEN:

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

  1. On 9 February 2023, the primary judge refused leave for Ms Spencer (“the mother”) to institute parenting proceedings under s 102QE of the Family…

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AGLC
Spencer (No 2) [2023] FedCFamC1A 92
Case
[2023] FedCFamC1A 92
Decision Date

CaseChat Overview and Summary

In the case of Spencer (No 2), the mother sought leave to appeal a decision made by the primary judge under section 102QB of the Act, which prohibited her from instituting further child-related proceedings without leave. The mother had already made multiple unsuccessful applications for leave under section 102QE. The current application is her twenty-second such application. The primary judge dismissed the mother's application for leave, and the mother sought leave to appeal this decision.

The legal issue before the court was whether the mother's proposed proceedings were vexatious and, therefore, whether leave to appeal should be granted. The mother had to prove that her proposed proceedings were not vexatious. The court had to consider the evidence provided in the mother's affidavit and the proposed Form 1 and Form 2 applications to determine whether there were reasonable grounds for the orders sought.

The court found that the mother's affidavit consisted largely of her beliefs and suspicions about various matters related to the proceedings. Many of the allegations had been previously made in her earlier applications for leave, and the court was not persuaded that the child's school reports were consistent with the mother's concerns. The court also noted that the final parenting orders provided that the father had sole parental responsibility for the child, including the child's school enrolment, and there was no obligation on the father to maintain the child's enrolment at a particular school. The court concluded that the mother had failed to demonstrate that her proposed proceedings were not vexatious and dismissed her application for leave to appeal.

The court's decision in Spencer (No 2) highlights the importance of providing cogent evidence in support of allegations made in family law proceedings. The court found that the mother's affidavit and proposed applications were largely based on her beliefs and suspicions, and there was insufficient evidence to support her claims. The court also noted that the final parenting orders provided that the father had sole parental responsibility for the child, including the child's school enrolment, and there was no obligation on the father to maintain the child's enrolment at a particular school. The court's decision also reinforces the principle that the burden of proof lies with the party seeking leave to institute further proceedings to demonstrate that the proposed proceedings are not vexatious.

Orders

Orders of the court

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Background

Background to the litigation

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 conclusions9.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

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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 above4.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)