VALDEZ & FRAZER
[2017] FamCAFC 18
•17 February 2017
FAMILY COURT OF AUSTRALIA
| VALDEZ & FRAZER | [2017] FamCAFC 18 |
| FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Application for review of Registrar's decision – Where the Registrar rejected two of the orders sought for filing in an Application in an Appeal – Where the orders sought were an abuse of process, frivolous, scandalous or vexatious – Where the Court lacked jurisdiction to make the orders sought – Application dismissed. FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – COSTS – Where the applicant was wholly unsuccessful – Costs ordered. |
| Family Law Act 1975 (Cth) s 102QB; Part VII, Division 12, Subdivision C Federal Court of Australia Act 1976 (Cth) s 24 Freedom of Information Act 1982 (Cth) Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth) s 5 |
Family Law Rules 2004 (Cth) rr 24.10, 22.40
Attorney General (NSW) v Wentworth (1988) 14 NSWLR 481
| Batistatos v Roads and Traffic Authority of NSW (2006) 226 CLR 256 |
| APPLICANT: | Mr Valdez |
| RESPONDENT: | Ms Frazer |
| FILE NUMBER: | SYC | 2226 | of | 2013 |
| FIRST APPEAL NUMBER: | EA | 30 | of | 2016 |
| SECOND APPEAL NUMBER: | EA | 38 | of | 2016 |
| DATE DELIVERED: | 17 February 2017 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Ainslie-Wallace J |
| HEARING DATE: | 14 February 2017 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 16 November 2016 (date of Registrar’s decision) |
| LOWER COURT MNC: | Not applicable |
REPRESENTATION
| THE APPLICANT: | In person |
| COUNSEL FOR THE RESPONDENT: | Mr Longworth |
| SOLICITOR FOR THE RESPONDENT: | Swaab Attorneys |
Orders
The application for review of Registrar’s decision filed on 28 November 2016 be dismissed.
The applicant father pay the respondent mother’s costs of and incidental to the application, such costs to be agreed or assessed and paid within twenty-eight (28) days of agreement or assessment.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Valdez & Frazer has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 30 of 2016; EA 38 of 2016
File Number: SYC 2226 of 2013
| Mr Valdez |
Appellant
and
| Ms Frazer |
Respondent
REASONS FOR JUDGMENT
Mr Valdez (“the applicant”) is the appellant in relation to parenting orders made by Le Poer Trench J on 15 February 2016 (Appeal EA 30 of 2016) and on 1 March 2016 (Appeal EA 38 of 2016). On 25 May 2016 an Appeals Registrar made procedural orders consolidating the two appeals and ordered that they be heard at the same time. On 14 November 2016 the applicant filed an Application in an Appeal seeking the following orders in relation to both those appeals.
The orders sought by him were as follows:
1.That this application in an appeal be heard at short notice/urgently.
2.That leave is granted to present video evidence of [the child’s] continuing distress under the current parenting orders.
3.The Court orders, under the Family Law Act 1975 (as amended), Part VII (Children), Division 12 (Proceedings and jurisdiction), Subdivision C (Jurisdiction of Courts), Section 69J(1), Part V (Jurisdiction of Courts), Division 2 Section 39B (Jurisdiction in de facto financial causes), Division 3, Section 45 (Stay and Transfer of Proceedings) and
a) under the Jurisdiction of Courts (Cross-vesting) Act 1987 (as amended), s 5(5)(a) and (b)(ii), these proceedings are transferred to the Federal Court as a matter of urgency.
b)Failing the above order being made: under the Jurisdiction of Courts (Cross-vesting) A 1987 (as amended), s 5(4)(a) and (b)(iii), these proceedings are transferred to the NSW Supreme Court as a matter of urgency.
4.The court Freedom of Information Unit and/or Officers, Registry Managers, Principal Registrars are ordered to provide all documents sought in the following requests under the Freedom of Information Act:
a)Documents and correspondence related to frauds of Ms M, September 03, 2016 (reference: …)
b) Documents related to the Association of Family and Conciliation Courts, July 20, 2016 (Reference: …)
By letter dated 16 November 2016, the appeal Registrar informed the applicant as follows:
I attach filed copies of your Application in an Appeal and affidavit filed
14 November 2016 for service on the respondent.[Attached files]
By way of courtesy I have copied the solicitor for the respondent into this email.
Please note that the attached Application in an Appeal has been accepted for filing only in relation to the orders sought in paragraphs 1 and 2 of Part D which relate to further evidence on appeal. The Application is not accepted for filing in relation to the orders sought in paragraphs 3 and 4 of Part D, which are not orders the Full Court can make in these proceedings. In this regard I refer you to rules 1.08 and 24.10, Family Law Rules 2004.
As the Application has been filed in relation to further evidence on appeal only, it will be listed for hearing before the Full Court at the hearing of the substantive appeals: rule 22.39(4).
Thus, to the extent that the application sought orders for the adducing of further evidence on the appeal, it was accepted for filing. The balance of the orders sought were not.
The applicant seeks to review the Registrar’s refusal to accept for filing the balance of the Application in an Appeal. The applicant supported the original Application in an Appeal by an affidavit sworn on 14 November 2016.
The applicable law
Rule 22.40 of the Family Law Rules 2004 (Cth) (“the Rules”) provides for review of a Regional Appeal Registrar’s order by a judge of the Appeal Division:
A party may apply for a review of a Regional Appeal Registrar's order relating to the conduct of an appeal by filing an Application in an Appeal in the Regional Appeal Registry, within 14 days after the order is made.
The review is a hearing de novo and it is thus unnecessary for the applicant to demonstrate error in the Registrar’s decision.
Before turning to the application to review the Registrar’s decision, it is of assistance to consider r 24.10 of the Rules, the basis on which the part of the applicant’s application was rejected for filing. This provides:
Rejection of documents
(1) A Registrar or judicial officer may reject a document filed or received for filing if the document:
(a) is not in the proper form in accordance with these Rules;
(b) is not executed in the way required by these Rules;
(c) does not otherwise comply with a requirement of these Rules;
(d) is tendered for filing after the time specified in these Rules or an order for filing the document;
(e) on its face, appears to the Registrar to be an abuse of process, frivolous, scandalous or vexatious;
…
The words “frivolous” and “vexatious” are not defined in the Family Law Act 1975 (Cth) (“the Act”). However, as the Full Court noted in Marsden & Winch (2013) FLC 93-560, the explanatory guide to the Rules provides the following explanation of those words:
frivolous — not worthy of serious consideration, insupportable in law, disclosing no cause of action or groundless (see also vexatious).
vexatious, in relation to an application — having no reasonable prospect of success (see Section 118 of the Act for the court’s powers in relation to a vexatious case; see also frivolous).
The Full Court in that same case referred to Attorney General (NSW) v Wentworth (1988) 14 NSWLR 481. In this case, in the context of the then s 84 of the Supreme Court Act 1970 (NSW), Roden J set out a test for determining whether proceedings are vexatious. At 491, his Honour said (emphasis added):
I believe that the test may be expressed in the following terms:
1. Proceedings are vexatious if they are instituted with the intention of annoying or embarrassing the person against whom they are brought.
2. They are vexatious if they are brought for collateral purposes, and not for the purpose of having the court adjudicate on the issues to which they give rise.
3. They are also properly to be regarded as vexatious if, irrespective of the motive of the litigant, they are so obviously untenable or manifestly groundless as to be utterly hopeless.
At [148] the Full Court in Marsden & Winch noted that it appeared to be well settled that the term “abuse of process” includes proceedings brought for an improper purpose or which are “frivolous, vexatious or oppressive”. The Full Court then referred to Ridgeway v The Queen (1995) 184 CLR 19 where Gaudron J said at 74 to 75:
The powers to prevent an abuse of process have traditionally been seen as including a power to stay proceedings instituted for an improper purpose, as well as proceedings that are “frivolous, vexatious or oppressive”. This notwithstanding, there is no very precise notion of what is vexatious or oppressive or what otherwise constitutes an abuse of process. Indeed, the courts have resisted, and even warned against, laying down hard and fast definitions in that regard. That is necessarily so. Abuse of process cannot be restricted to “defined and closed categories” because notions of justice and injustice, as well as other considerations that bear on public confidence in the administration of justice, must reflect contemporary values and, as well, take account of the circumstances of the case. That is not to say that the concept of “abuse of process” is at large or, indeed, without meaning. As already indicated, it extends to proceedings that are instituted for an improper purpose and it is clear that it extends to proceedings that are “seriously and unfairly burdensome, prejudicial or damaging” or “productive of serious and unjustified trouble and harassment”.
(Citations omitted)
The Full Court at [149] also referred to the plurality (Gleeson CJ, Gummow, Hayne and Crennan JJ) in Batistatos v Roads and Traffic Authority of NSW (2006) 226 CLR 256 which held at 267 at [15]:
…it should be added that the power to deal with procedural abuse extends to the exclusion of particular issues which are frivolous and vexatious…
The appeal proceedings
Before considering the application, it is also necessary to give some context to this application by reference to the proceedings.
Appeal EA 30 of 2016 relates to orders made by Le Poer Trench J on
15 February 2016 dismissing an application that his Honour disqualify himself from hearing any proceedings between the applicant and Ms Frazer (“the respondent”) relative to parenting matters. In those proceedings the applicant sought an order for recusal by an oral application made at a time when the Court was about to hear his contravention application which had been filed on 12 October 2015.
Appeal EA 38 of 2016 relates to orders made by Le Poer Trench J on 1 March 2016 dismissing the applicant’s amended contravention application filed on
24 February 2016 and his application for variation of parenting orders. The contravention application related to whether orders required a parent to notify the other in relation to General Practitioner appointments for the child and the making of medical appointments related to other health care professionals. His Honour found that the contravention could not be established and dismissed the application.
Thus, the parenting orders of Le Poer Trench J from which the appeals are brought represent a continuum of orders made in parenting proceedings between these parties in relation to their child.
It is relevant too to note that on 12 May 2016 Le Poer Trench J made orders pursuant to s 102QB of the Act which prohibited the applicant from instituting proceedings under the Act against or in relation to the respondent or the child without first having been granted leave to commence those proceedings.
The orders contain a notation that the applicant’s consent to the making of the orders was given in order to resolve proceedings, and in doing so he was forgoing his right to contend that he has not acted in a way which would otherwise invoke the provisions of s 102QB.
The Application in an Appeal
Order 3: Transfer of proceedings to other courts
Turning then to the orders sought in the application which were not accepted for filing, order 3 seeks a transfer of the proceedings presently before the Family Court to either the Federal Court of Australia or to the Supreme Court of NSW. In oral submissions the applicant explained that by “proceedings presently before the Family Court” he was referring to all outstanding matters within the Family Court, that is both the appeals and the ongoing proceedings at first instance which include financial proceedings between the parties and which have not yet been completed. He further contended that if the appeal proceedings could not be transferred then the Court could still make orders transferring the proceedings in the court below.
The applicant invoked s 5(5)(a)and (b)(ii) of the Jurisdiction of Courts (Cross‑Vesting) Act 1987 (Cth) (“the Cross-Vesting Act”) as the basis for the transfer to the Federal Court.
Section 5(5) of the Cross-Vesting Act relevantly says:
Transfer of proceedings
(5)Where:
(a) a proceeding (in this subsection referred to as the relevant proceeding) is pending in the Federal Court or the Family Court (in this subsection referred to as the first court); and
(b)it appears to the first court that:
…
(ii)it is otherwise in the interests of justice that the relevant proceeding be determined by the other of the courts referred to in paragraph (a) the first court shall transfer the relevant proceeding to that other court.
A provision in the same terms is found in s 5(4) of the Cross-Vesting Act regarding transfers to the Supreme Court.
The appellate jurisdiction of the Federal Court in civil proceedings is found in s 24 of the Federal Court of Australia Act 1976 (Cth) (“the Federal Act”) and makes no reference to any jurisdiction to hear appeals arising from the Family Court under the Act. Further, sections 69H to 69N of the Act deal with the jurisdiction of courts in relation to Part VII of the Act which relates to parenting matters. None of these sections invest any jurisdiction on the Federal Court to deal with parenting matters arising under the Act.
The basis of the application to transfer the appeals and other proceedings to the Federal Court lies in the applicant’s contention that it is in the interests of justice that they be transferred because the Family Court’s processes are beset by fraudulent and questionable conduct.
The thrust of the applicant’s argument as expressed in the affidavit in support of the application of 14 November 2016 focuses on Ms M, a psychologist who prepared a report for the court in relation to the parenting issues between these parties. The applicant contends that the Family Court has a “relationship” with Ms M and that the work of psychologists does not meet the definition of “expertise” for the purposes of the Act. He further asserts that Ms M has perpetrated professional fraud and that the Family Court has been an “active participant” in the frauds. In his oral submissions, the applicant further contended that the Court had conducted itself in a dubious and improper fashion by commissioning and overseeing research concerning children.
The applicant argued that, by contrast, the Federal Court has no association with Ms M; nor does it “[contain] Judges or Justices that claim to be qualified to conduct ethics supervision of experiments/research on parties that appear before them…”; nor judges who have been active in “commissioning, financing, prepetrating [sic], and covering up, misrepresenting or excusing the scientific fraud on the Australian public, of [Ms M], concerning the care of children in separated families.”
The applicant further asserted that the Federal Court of Australia has not commissioned research on children and fathers, has no current contract with Ms M nor conducts “anti-father advocacy group/association[s]”.
No submissions were directed to so much of the orders that seek a transfer of the proceedings to the Supreme Court of NSW.
Order 3 sought in the Application in an Appeal must be rejected. The order sought, on its face, is so “obviously untenable” due to the jurisdictional issues and the scandalous allegations upon which it is based that I am convinced that it has “no reasonable prospects of success”. I am further satisfied that it amounts to an abuse of the Court’s process.
Order 4: Provision of documents pursuant to the Freedom of Information Act 1982 (Cth) (“the FOI Act”)
The orders sought in order 4 of the 14 November 2016 Application in an Appeal are in the nature of a request for information. That is, it seems that the applicant wishes an order be made directing a person within the Family Court to provide documents pursuant to the “Freedom of Information Act” in relation to freedom of information requests he has made.
The Family Court is not invested with any jurisdiction to review requests made under the FOI Act, either by the Act or the FOI Act. Thus this order cannot be made by a Full Court and, in my view, the application for such an order is incompetent. So much so appeared to be conceded by the applicant who submitted that the Federal Court was the appropriate forum for a review of this nature.
Accordingly, the applicant contended that the purpose of this order being sought was so that the application would come before the Federal Court were the proceedings to be transferred. The applicant further contended in oral submissions that, in the event that order 3 was rejected for filing, order 4 should still be accepted in an alternate form, that being that such an order be made by the Court by reference to some power outside the FOI Act. No foundation for the Court’s power to make such an order was contended.
Conclusion
Thus the application for review will be dismissed, and orders 3 and 4 remain rejected for filing. Finally, I observe that in the application, as part of the orders sought on the review, the applicant seeks leave to amend the Notices of Appeal in appeals EA 30 of 2016 and EA 38 of 2016 to challenge the order of Le Poer Trench J made on 12 May 2016.
That order forms no part of the instant appeals and no such amendment to either appeal should be permitted. To raise an appeal against this order the applicant would need leave to appeal out of time. Though the applicant pressed for this issue to be considered at the review hearing, this would require the applicant to make a formal application supported by an affidavit, so that the respondent had a chance to consider submissions to make in reply. This being the case, I did not entertain submissions on this point.
Costs
The respondent sought costs in the event that the application was unsuccessful. The applicant opposed such an order being made. Costs are governed by s 117 of the Act, and both parties submitted that their financial circumstances should be taken into account in considering the making of a costs order.
The applicant asserted that he works as a contractor, making approximately $126,000 per year, and has paid a significant amount in costs in the proceedings in the court below, and as security for costs in the appeal proceedings. The applicant also submitted that property settlement proceedings remained outstanding before the court, and that given the respondent’s legal costs thus far he was unlikely to receive any significant settlement.
The respondent earns $80,000 per year, and receives $398 from the applicant in child support every fortnight. She currently resides in rental accommodation costing some $625 per week.
However, in my view the overriding consideration in this case is that the applicant has been wholly unsuccessful in his application. Thus it is appropriate that he be ordered to meet the respondent’s costs of the application.
I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ainslie-Wallace delivered on 17 February 2017.
Associate:
Date: 17 February 2017
6
3
4