Spencer (No 2)

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.