Uttar
[2025] FedCFamC1A 121
•17 July 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Uttar [2025] FedCFamC1A 121
Appeal from: Uttar & Rajendra [2025] FedCFamC2F 647 Appeal number: NAA 313 of 2025 File number: SYC 4013 of 2024 Judgment of: SCHONELL J Date of judgment: 17 July 2025 Catchwords: FAMILY LAW – APPEAL – Application in an Appeal – Leave to appeal – Harmful proceedings – Where the primary judge made final financial orders and restrained the applicant from instituting further proceedings against the respondent – Where the applicant sought a grant of leave to appeal from the orders of the primary judge – Where all grounds of appeal are bereft of merit – Where the applicant has not established the proposed appeal is not vexatious – Application dismissed. Legislation: Family Law Act 1975 (Cth) ss 102Q, 102QAC, 102QAE, 102QAF, 102QAG Cases cited: Bahonko v Sterjov (2008) 166 FCR 415; [2008] FCAFC 30
Darley (No 4) [2023] FedCFamC1A 158
D’Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1; [2005] HCA 12
Ebner & Pappas (2014) FLC 93-619; [2014] FamCAFC 229
House v The King (1936) 55 CLR 499; [1936] HCA 40
Kioa v West (1985) 159 CLR 550; [1985] HCA 81
Nimesh Watapaldeniya v Transport Accident Commission [2022] VSCA 50
Walton v Gardiner (1993) 177 CLR 378; [1993] HCA 77
Whisprun v Dixon (2003) 200 ALR 447; [2003] HCA 48
Number of paragraphs: 41 Date of hearing: 9 July 2025 Place: Sydney The Applicant: Litigant in person ORDERS
NAA 313 of 2025
SYC 4013 of 2024FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MS UTTAR
Applicant
ORDER MADE BY:
SCHONELL J
DATE OF ORDER:
17 JULY 2025
THE COURT ORDERS THAT:
1.The Application in an Appeal filed 2 July 2025 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).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of 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 Uttar has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
SCHONELL J:
By Application in an Appeal filed 2 July 2025 (“the application”) the applicant sought leave to appeal orders made on 4 June 2025 by a judge of the Federal Circuit and Family Court of Australia (Division 2). The orders the subject of the application enforced final financial orders, dealt with costs, and included an order pursuant to s 102QAC(1) of the Family Law Act 1975 (Cth) (“the Act”).
By the terms of the last order, the applicant can only commence proceedings against the respondent with leave of the Court. At the hearing of the application (which was heard in the absence of the respondent) the applicant relied upon her affidavit in support of the application, a Case Outline and made oral submissions.
For reasons that follow, the application will be dismissed.
BACKGROUND
The primary judge observed that the parties have been in litigation since October 2014 in various courts including the Family Court of Australia (as it was then known), the Full Court of the Federal Circuit and Family Court of Australia (Division 1) and the Supreme Court of New South Wales.
The financial orders the subject of this application for leave to appeal were first made by consent on 30 April 2019 and varied following a hearing on 6 December 2023. An appeal was filed against that order by the applicant as were a number of Applications in an Appeal, each of which were unsuccessful.
The applicant contended before the primary judge that the respondent had not complied with various provisions of the final financial orders and sought orders for enforcement (“the enforcement application”). As part of the application before the primary judge, the applicant contended that an authority for the dispersal of the proceeds of sale of a property the subject of the orders was not signed by her and was a forgery as well as contending that she was owed by the respondent under the orders at least $338,000.
The respondent sought dismissal of the enforcement application, an order pursuant to s 102QAC of the Act, and for the Court to enforce various costs orders made against the applicant.
The primary judge found at [148], contrary to the assertions advanced by the applicant, that the authority was not a forgery and, contrary to the amount sought by the applicant, determined the amount due to the applicant was $41,965.10. The primary judge ordered the applicant to pay the respondent’s costs of the enforcement application in the sum of $19,823.10 as well as setting off from the amount to be paid various costs orders dated 19 February 2024, 28 March 2024 and 22 May 2024 which the applicant had failed to pay, totalling $22,142.00.
The primary judge otherwise dismissed the enforcement application and made an order pursuant to s 102QAC(1) of the Act.
The applicant seeks leave to appeal the dismissal of the enforcement application, the costs orders, and the order pursuant to s 102QAC(1) of the Act.
DISPOSITION
Section 102QAE(2) of the Act enables a person who is subject to a harmful proceedings order to apply to the Court for leave to institute proceedings.
A party seeking leave is required pursuant to s 102QAE(3) of the Act to file an affidavit in support of the application for leave. The section in mandatory terms directs the filing of an affidavit that:
(a)lists all the occasions on which the applicant has applied for leave under the section; and
(b)discloses all relevant facts about the application, whether supporting or adverse to the application, that are known to the applicant.
Pursuant to s 102QAF(1) of the Act, the Court retains a discretion to dismiss the application if it considers the affidavit does not substantially comply with s 102QAE(3) of the Act.
The applicant’s affidavit in support of the application comprises five paragraphs. The affidavit is in the following terms:
1.I am the applicant.
2.I am applying for leave under section 102QAE of Family Law Act 1975 for first time.
3.Annexed and marked A is my proposed notice of appeal with copy of orders.
4.Annexed and marked B are my missing super fund bank statements that were inadvertently misplaced during affirmation.
5.I suffer substantial miscarriage of justice if I am not allowed to appeal the unjust orders and reasons for orders made by primary judge.
(As per original)
It is immediately apparent that the affidavit does not, in compliance with s 102QAE(3)(b) of the Act, disclose all relevant facts about the application, whether supporting or adverse to the application, that are known to the applicant. Consequently, there has not been substantial compliance with the section, and it is open to dismiss the application on this basis alone.
Section 102QAF(2) provides that the Court must make an order dismissing an application under s 102QAE if it considers the proceedings are vexatious. Pursuant to s 102QAG of the Act, the Court may grant leave only if it is satisfied that the proceedings are not frivolous, vexatious or an abuse of process and have reasonable prospects of success. This latter section casts an onus upon the applicant and a failure to discharge that onus means that leave will not be granted (Darley (No 4) [2023] FedCFamC1A 158).
Vexatious proceedings are defined in s 102Q(1) of the Act to include:
(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.
Proceedings will constitute an abuse of process if they can clearly be seen to be “foredoomed” to fail (Walton v Gardiner (1993) 177 CLR 378 at 393). A determination under either s 102QAF(2) or s 102QAG(1) invites consideration of the merits of the appeal as articulated through the grounds in the context of the primary judge’s reasons (Ebner & Pappas (2014) FLC 93-619).
No part of the draft Notice of Appeal set out “a specific and concise statement of the points sought to be argued” (Nimesh Watapaldeniya v Transport Accident Commission [2022] VSCA 50 at [2]). It is not for this Court to identify error (Bahonko v Sterjov (2008) 166 FCR 415).
The orders made by the primary judge involved the exercise of a wide discretion. To succeed in an appeal from a discretionary determination, the applicant must bring their appeal within the well-settled principles identified in House v The King (1936) 55 CLR 499 at 504–505 (“House v The King”).
The draft Notice of Appeal annexed to the applicant’s affidavit enumerates the four grounds of appeal to be as follows:
1.The primary judge unjustly made order 2 on 4 June 2025 “applicant shall pay the Respondent's costs of the Application- Enforcement filed on 28 May 2024 in the fixed sum of $19,823.10 (inclusive of GST)”.
2.The primary judge unjustly made order 3(b) on 4 June 2025 “The sum of $19,823.10 in satisfaction of the costs order made against the Applicant in favour of the Respondent at order 2 herein”.
3. The primary judge unjustly made order 4 and 5 and 6 on 4 June 2025.
4.Primary judge erred in reasons [91]–[223] infected with substantial miscarriage of justice.
(As per original)
It is immediately apparent from the draft Notice of Appeal that it does not establish House v The King error. Nor does the inclusion of the word “unjust” give rise to appealable error in the terms of any category of House v The King, least of all the last, namely, that on the facts the determination was unreasonable or plainly unjust.
As to Ground 1, the applicant complained in the Case Outline and oral submissions that the order of the primary judge was unreasonable and unjust. Such a proposition may be a subjective conclusion of the consequence of the order, but it does not assist in the identification of error on the part of the primary judge. The applicant proceeded to contend that it was unreasonable of the respondent to rely upon an offer of settlement that was open for only 24 hours and consequently unreasonable of the primary judge to rely upon it in making a costs order. She also contended that the primary judge did not consider in the making of a costs order that the respondent had contended unsuccessfully before the primary judge that an issue estoppel arose preventing the applicant agitating enforcement of the orders.
The applicant’s submission as to issue estoppel fails to accurately record the entirety of the respondent’s case. While the respondent advanced an argument based on issue estoppel, he contended in the alternative that the applicant was entitled to a payment of $41,965.10 (at [71]) being the amount ultimately found by the primary judge to be the sum due to the applicant, less amounts for unpaid costs.
The primary judge’s reasons for making a costs order included not just the respondent’s offer of settlement but the following:
205But for the underpayment of $38,179.10 (which the husband readily conceded was owing, with interest) the wife has been unsuccessful in her contentions that she has not received her entitlements under the 2019 and the 2023 orders.
206I have determined that the payment of the costs orders made by Austin J, Christie J and Appeal Judicial Registrar Cameron is to be made from the funds payable to the wife $41,965.10 (being $38,179.10 plus interest). This means that, subject to any order that I make for the costs arising from this Enforcement Application, the wife is entitled to receive the sum of $19,823.10. Had the wife accepted the 13 February 2025 offer, she would have been $176.90 better off than she now is, and each party would have been saved the time and stress of attending at a hearing. The court time spent hearing and determining this matter, could have been directed toward other litigants.
207The wife’s failure to accept the 13 February 2025 offer resulted in the husband incurring legal fees so as: to prepare for and meet the wife’s Enforcement Application; to agitate for the payment of the outstanding costs; and to seek a harmful proceedings order so as to attempt to bring the litigation to an end. These are costs that could have been avoided had the wife accepted the husband’s offer sent in advance of the hearing.
208The calculations relied upon by the wife in support of her contentions about the payments made (or not made) to her, failed to bring to account various payments made to her or on her behalf. These omissions were significant and material and the process of trying to untangle the wife’s calculations prolonged both the hearing and the preparation of this judgment.
209For reasons already given, I rejected the wife’s argument that she did not receive the sum of $252,604.87 paid into the [J Lawyers] office account, and I have accepted the submission made for the husband that any issue the wife takes with that payment (and the authority pursuant to which it was made) is a matter as between the wife and [J Lawyers], rather than a matter as between the wife and the husband. This plank of the wife’s case was entirely without merit.
The primary judge was not required to identify every piece of evidence (Whisprun v Dixon (2003) 200 ALR 447 at [62]). The approach of the primary judge represented an orthodox and correct application of the law to the facts as established by the evidence and findings made. The order for costs was soundly made and well within the bounds of a reasonable exercise of discretion. Ground 1 is without merit. As Ground 2 relies upon a finding of error in Ground 1, it also is without merit.
Ground 3 contends that Orders 4, 5 and 6 were unjustly made. Order 4 addressed dismissal of the enforcement application while Orders 5 and 6 addressed the harmful proceedings order.
The challenge to the dismissal of the enforcement application rests upon two bases, albeit not articulated in the draft Notice of Appeal but identified in the applicant’s Case Outline and oral submissions. Firstly, that the primary judge erred in failing to find that the respondent had not paid $4,000 pursuant to Order 11 made 30 April 2019 and secondly, taking into account the unpaid $4,000 plus interest, the primary judge erred in failing to find that the amount due to the applicant by the terms of Order 1 should be $50,306.49 and not $41,965.10.
As to the first part of the applicant’s submission, it is apposite to observe that the findings of the primary judge on this issue were as follows:
139The wife bears the onus of proving her contention that the husband did not make payment of the sum of $4,000.00 to the [Super Fund 1], as was required by order 11 of the 2019 orders.
140In both her written and oral submissions, the wife directed me to Commonwealth Bank statements annexed to her affidavit filed 13 February 2025 in support of her contention.
141The bank statements relied upon by the wife in relation to this issue span the period 7 December 2019 to 6 December 2023. The wife did not annexe any bank statements pre-dating 7 December 2019.
142There is no evidence before me of the transactions on the [Super Fund 1] account in the seven months following the making of the 2019 orders. Therefore, the evidence adduced by the wife does not permit me to find that the husband did not make payment in that seven-month period. Counsel for the husband submitted that it fell to the wife to adduce evidence so as to prove her contention, rather than to the husband to trawl through records that are now some years old so as to disprove the wife’s mere assertion. I accept that submission.
143The lacuna in the wife’s evidence on the issue was raised in the husband’s Case Outline Document filed 13 February 2025.36 In the wife’s written outline of her oral submissions, the wife engaged with various arguments raised by the husband in his Case Outline Document, such as the issue estoppel. I infer, therefore, that the wife was on notice as at 13 February 2025 that the husband contended she had failed to adduce evidence to make good her contention that he had not made payment of $4,000.00 into the superannuation account.
144Following receipt of the husband’s Case Outline Document, the wife filed a further affidavit, upon which she sought to rely at the hearing. Whilst I refused leave to her to rely on that affidavit, I received the documents annexed to it as a tender bundle. The wife could have, but did not, include in that bundle a copy of the bank statements for the period between 30 April 2019 and 7 December 2019 to remedy the deficiency in her affidavit evidence.
145For these reasons, I am not satisfied that the wife has discharged her onus of proof on this issue, and her application to enforce payment of $4,000.00 to [Super Fund 1] in accordance with the 2019 orders must fail.
No aspect of the submissions advanced on behalf of the applicant demonstrate error on the part of the primary judge in requiring the applicant to establish the propositions for which she contended at trial. The deficiency in the production of evidence was entirely a function of the way in which the applicant presented the evidence before the primary judge. Her omission in failing to include what she contended were relevant bank statements does not demonstrate error on the part of the primary judge.
Apposite to the contentions now advanced by the applicant are the observations of the High Court in D’Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1 as to the finality of litigation and the quelling of controversies. In the context of appeals, their Honours observed as follows:
35The principal qualification to the general principle that controversies, once quelled, may not be reopened is provided by the appellate system. But even there, the importance of finality pervades the law. Restraints on the nature and availability of appeals, rules about what points may be taken on appeal and rules about when further evidence may be called in an appeal (in particular, the so-called “fresh evidence rule”) are all rules based on the need for finality. As was said in the joint reasons in Coulton v Holcombe: “[i]t is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial”.
(Footnotes omitted)
Their Honour’s observations in the above paragraph are apposite to the determination of leave to appeal on this aspect of the application. A refusal to grant leave to appeal does not otherwise prejudice the rights of the applicant in respect of such other application she may, as a matter of law, be entitled to bring, subject always to the question of leave.
The balance of the applicant’s submission on this ground merely recycled arguments she relied upon at hearing which were not accepted by the primary judge. Finding contrary to the case advanced by the applicant is not error. Recycling the unsuccessful argument takes the matter no further. No attempt was made by the applicant to engage with the primary judge’s finding as follows:
91 For reasons that will follow, I am satisfied that:
(a)There is data in the wife’s table of calculations about the proceeds received on the sale which is inaccurate;
(b)The wife’s calculations do not follow the scheme provided for in the 2019 and 2023 orders as to the order in, and priority with which, the net proceeds of the [Suburb C] property sale were to be applied;
(c)Some of the data the wife has relied upon in relation to various costs and disbursements is inaccurate. This includes, but is not limited to, the $20,000.00 calculation error earlier referenced; and
(d)The wife’s calculation of her entitlements under the orders is inaccurate.
A failure to establish error on the part of the primary judge is fatal to the success of the ground. I am not satisfied that there is any merit to the applicant’s challenge to Order 3.
As to the applicant’s challenge to the making of the harmful proceedings order (Orders 5 and 6), the highest the applicant’s contention reached was that she was denied procedural fairness in the making of an order that she asserted was unjust.
Procedural fairness requires each party to be given an adequate opportunity to be heard and to present their case (Kioa v West (1985) 159 CLR 550 at 582). The primary judge recorded in her reasons at [158] that the respondent gave notice of his intention to seek a harmful proceedings order in his Case Outline and that the applicant made submissions. The applicant had an opportunity to be heard and was heard.
The primary judge’s reasons as to the making of the order included as follows:
161In this hearing, the husband relied upon an affidavit from his solicitor. He did not provide an affidavit himself. His solicitor deposed, relevantly, that:
(a) Since Judge Beckhouse handed down her decision, the wife:
(i)Filed an appeal on 8 December 2023 against her Honour’s orders ventilating many of the issues she raised on the present application;
(ii)Filed an Application in an Appeal on 18 January 2024, seeking leave to appeal against the orders made by Rees J, some four years earlier;
(iii)Filed a further Application in an Appeal on 8 March 2024 seeking review of the dismissal of her application for leave to appeal against the orders made by Rees J; and
(iv)Filed an Application – Enforcement on 27 May 2024, which was subsequently amended on 24 October 2024.
(b)He estimates that the husband has paid legal fees of over $200,000 arising from legal proceedings between the parties since the consent orders were made in 2019; and
(c)The husband has instructs that:
(i)The ongoing proceedings cause him to incur time away from his medical practice; and
(ii)The numerous applications made by the wife are an ongoing source of stress to him.
…
163I reiterate the comments made by Christie J in her judgment that the wife has some difficulty accepting that the issues she continues to complain of have been finally determined. During the course of argument before me, I was referred to the wife’s summary of argument filed in the appeal before Christie J. That document featured a table of the wife’s calculations of her entitlements that is similar to that which I have earlier set out in these reasons; a list of various adjustments she contends were to be made to the sum she contends she was entitled to receive; and submissions about the funds paid into the [J Lawyers] office account, which are difficult to reconcile with the submissions she made before me. When this part of the wife’s summary of argument is considered alongside my reasons for judgment, I respectfully agree with Christie J that the wife has some difficulty accepting that the issues which continue to vex her have been finally determined.
164Although the wife submitted that she will not return to Court after I determine this matter, I do not feel confident that she will remain true to her word. The litigation history I canvassed in the Background section of these reasons (noting that it was, in effect, a snapshot and did not cover the entire litigation history going back to 2014) satisfies me that the wife has been pursuing arguments similar to those ventilated before me, for some time now. She attempted, unsuccessfully, to appeal the orders of Rees J some four years after the orders were made. She has returned numerous times to the theme of the husband’s purported breaches of the 2019 orders.
165The wife has appeared, self-represented, in the appeal proceedings, the proceedings before Judge Beckhouse and now, in the proceedings before me. Although she contended she had no funds to pursue litigation, as a litigant in person, she has no solicitor’s or counsel’s fees to pay and she need meet only any filing fee subject to any fee relief the Court may grant. I do not consider impecuniosity to be a matter that will preclude the wife from filing further proceedings.
166Costs orders have been made against the wife which have gone unpaid by her. But for the fact that there are funds owing to her which can be applied to outstanding costs orders, I have doubt as to whether the costs orders made by Austin J, Christie J and Appeal Judicial Registrar Cameron would have ever been paid by the wife given her submissions about her financial circumstances. Costs have not proved to be an effective deterrent to the wife pursuing litigation about matters which she has already brought to the Court.
167I accept that ongoing litigation exposes the husband to stress, although in the absence of direct evidence by the husband, or some medical evidence about the extent of that stress, I cannot be satisfied that any stress he experiences rises as high as “psychological harm or oppression or major mental distress” as set out at s 102QAC(2)(a) and (b) of the Act.
168I am, however, satisfied that the proceedings are now financially harmful to the husband. He has had costs in the vicinity of $200,000.00 for legal fees and for the sale of the [Suburb C] property. To the extent that those costs may have been accounted for by way of costs orders and the by the provisions of the 2023 orders which effectively reimbursed him for some of the sale costs of the [Suburb C] property, I am satisfied that he will have recouped only a portion of the money he has spent.
169Ten years is a long time to spend before the Court. I am comfortably satisfied that the proceedings between these parties must now be brought to an end. A person who is the subject of a harmful proceedings order may, with leave of the Court, commence further proceedings. In this instance, a harmful proceedings order against the wife will not prevent her from litigating any proper claim for relief she may have. She will, however, require leave to do so.
The applicant was not denied procedural fairness. No error is apparent from the way the primary judge dealt with the application or the way her Honour gave reasons for making the order.
Ground 3 is without merit.
Ground 4 is not recognisable as a ground of appeal.
The appeal is devoid of merit and has no reasonable prospects of success. The consequence is that it is vexatious within the terms of s 102Q(1) of the Act and the application must be dismissed.
I certify that the preceding forty-one (41) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Schonell. Associate:
Dated: 17 July 2025
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