Family Court Dismisses Appeal by Vexatious Litigant Seeking Leave to Commence Fresh Parenting Proceedings
Spencer (No 2) [2023] FedCFamC1A 92 (13 June 2023)
This case is an appeal case that took place in the Federal Circuit and Family Court of Australia. The main subject of the case revolves around family law and issues related to a vexatious litigant.
Facts: Ms. Spencer, the applicant, sought leave to appeal against the dismissal of her application to commence fresh proceedings in relation to parenting orders. It was her twenty-second application under section s102QE of the Family Law Act. All previous applications had been dismissed. The primary judge refused her application on grounds that it was vexatious as it lacked reasonable prospects of success.
Issue: The issue in this case revolves around the mother's application for leave to appeal and her claims of bias against the primary judge. She alleges that the judge was biased because of previous professional relationships with other legal professionals involved in the case. She also asserts that her concerns regarding the child's change of school were dismissed unfairly and that her allegations regarding mistreatment of family animals coinciding with court proceedings were ignored.
Rule: The relevant rules applied in this judgment include section 102Q(1), which defines a vexatious proceeding, and section 102QF(2) and 102QG(4), which outline the grounds for dismissing an application for leave to appeal if it is deemed vexatious. Section 28 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) also guides the decision-making process on whether to grant leave to appeal.
Application: The court applied these rules to determine whether there was any merit in the mother's allegations of bias or whether her application was vexatious. The court found that her allegations failed to establish actual bias as defined by law. It was concluded that her allegations were simply repetitions of assertions made before the primary judge, rather than a challenge to any conclusion drawn by the primary judge. Furthermore, it was determined that her new material presented did not significantly challenge the correctness of the primary judge's conclusions about the change of schools and its impact on the child.
With regard to her claims of bias, specifically concerning past professional relationships between legal professionals involved, it was held that a fair minded lay observer would not reasonably draw a conclusion of bias from those facts. Also, no logical connection could be established between alleged animal mistreatment and feared deviation from deciding case on its merits.
Conclusion: The court ultimately dismissed all grounds for alleged bias as without merit and found that her proposed appeal lacked reasonable prospects of success, thus deeming it vexatious according to s 102Q(1). As a result, the application for leave to appeal was dismissed under s 102QF(2) and s 102QG(4).
Reasoning: The reasoning for the judgment is based on the fact that the mother failed to establish actual bias or a reasonable apprehension of bias against the primary judge. Her application was found to be repetitive of previous assertions rather than presenting new evidence or arguments that could challenge the conclusions of the primary judge. The new material presented did not significantly alter the perception of the primary judge's conclusions, and her alleged connections between animal mistreatment and court proceedings lacked logical coherence.
Take-home lesson: This case underscores the importance of establishing clear grounds for alleging bias and for presenting new material or arguments when seeking an appeal. Simply repeating previous assertions or drawing unfounded connections is unlikely to be successful. Furthermore, it highlights that an unsuccessful application does not in itself establish bias. Finally, it demonstrates that professional relationships between legal professionals do not automatically lead to a reasonable apprehension of bias.
Details of Parties:
- Applicant: Ms. Spencer - Respondent: Federal Circuit and Family Court of Australia
- Judges Involved in Appeal Case: Aldridge, Tree & O'Brien JJ
