Beckford [2025] FedCFamC1A 84 (14 May 2025)

IT IS NOTED that publication of this judgment by this Court under the pseudonym Beckford has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

1. These reasons explain why an application for leave to appeal from orders made between the parties by a judge of the Federal Circuit and Family Court of Australia (Division 2) under Pt VII and Pt XIB of the Family Law Act 1975 (Cth) ("the Act") on 9 April 2025 must be dismissed.

1. The applicant and the respondent separated in late 2017. They have three children.
2. Proceedings in respect of the children were first finalised with the parties' consent in August 2019 (at [17]). The parties were vested with equal shared parental responsibility for the children, who would live with the applicant and spend time with the respondent.
3. The orders did not quell the parenting dispute. Fresh proceedings were initiated and determined by more orders made in October 2021 (at [23]), which provided for the children to instead live with the respondent and for her to have sole parental responsibility for them. The orders made provision for the children to spend time with the applicant, the amount of which depended upon the proximity of his residence to the respondent's residence.
4. Only a month later, in November 2021, the applicant withheld the children, which resulted in the intervention of the State child welfare agency (at [25]-[30]).
5. The fresh proceedings before the primary judge - being the third set of proceedings brought under Pt VII of the Act - were commenced by the applicant's brother in March 2023 (at [31]). Ultimately the paternal uncle withdrew from the proceedings as a party and the applicant became the putative applicant (at [43]).
6. The proceedings came on for trial before the primary judge in February 2025, by which time the Court no longer had any jurisdiction over the eldest child, as she had attained her majority (s 65H(1)(a)). The respondent acceded to the applicant's proposal in respect of the middle child (at [122]) and so the controversy was confined to the governance of parenting arrangements for the youngest child.
7. Relevantly, the primary judge discharged former orders (Order 2) and ordered that the youngest child live with the respondent (Order 4) and spend time with the applicant (Order 5). The respondent was vested with sole parental responsibility for the youngest child (Order 3). Such orders were made under Pt VII of the Act.
8. Otherwise, both parties were restrained from instituting further parenting proceedings without the antecedent grant of leave to do so (Orders 28 and 29). Such injunctions were made under Pt XIB of the Act.
9. By an Application in an Appeal filed on 7 May 2025, the applicant sought the grant of leave under s 102QAE of the Act to appeal from a selection of the orders made by the primary judge.

1. Pt XIB of the Act was enacted by the Family Law Amendment Act 2023 (Cth) and became operative from 6 May 2024, the purpose of which was explained this way in the Explanatory Memorandum:
   1. ...The purpose of this measure is to protect the respondent and/or children who are the subject of proceedings from the harmful impact of frequency and unnecessary applications filed by an applicant. This measure aims to limit systems abuse, which is a form of family violence that is prevalent in the family law system.
   2. This measure addresses a gap in the court's powers to scrutinise the institution of further proceedings, cited in the case of Marsden & Winch [2013] FamCAFC 177; (2013) 50 Fam LR 409. The ALRC Report found that the court's existing vexatious proceedings and summary dismissal powers do not provide sufficient scope for courts to make appropriate orders in cases where one party oppresses the other by repetitive filing of applications and the serving of those applications on the other party.
2. The harmful proceedings orders made here against both parties pursuant to s 102QAC(1) of the Act (Orders 28 and 29) do not carve out any exception for appeals and so the injunctions restraining further proceedings by them catch both further original and appellate proceedings (Pencious & Searle [2017] FamCAFC 210; (2017) FLC 93-805 at [77]-[88]). The applicant therefore needs leave under Pt XIB of the Act to bring an appeal from any of the orders made by the primary judge.
3. When prosecuting an application under s 102QAE(2) of the Act for leave to institute further proceedings and thereby override the effect of the harmful proceedings injunction, it is obligatory for the applicant to file an affidavit containing certain evidence (s 102QAE(3)) and, absent substantial compliance with the requirements of s 102QAE(3) of the Act, the application may be dismissed (s 102QAF(1)).
4. However, the application must be dismissed if the proposed further proceedings (in this case an appeal) fall within the definition of "vexatious proceedings" (s 102QAF(2)) or if the applicant fails to satisfy the Court the further proceedings are not vexatious (s 102QAG(1)). The distinction between the counterparts of those two provisions (ss 102QF(2) and 102QG(4)) was explained by the Full Court (Darley (No 4) [2023] FedCFamC1A 158 at [13]-[22]).
5. For the purpose of ascertaining whether ss 102QAF(2) or 102QAG(1) apply to govern the result by dismissal of the application, the term "vexatious proceedings" is defined as follows in the Act (s 102Q(1)):

"vexatious proceedings" includes:

(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.

(Emphasis in original)

1. Sub-paragraph (c) of the definition makes clear it is enough for the proposed proceeding to be characterised as vexatious if it is "without reasonable ground".
2. For clarity then, the task now at hand is quite different from the tasks undertaken by the primary judge. When making Orders 1-27, her Honour had to be satisfied they were made in the children's best interests (s 60CA and s 65AA of the Act). When making Orders 28 and 29, her Honour had to be satisfied there were reasonable grounds to believe the parties and/or the children would likely suffer harm if fresh proceedings were brought in the future (s 102QAC). However, it only now needs to be determined whether the applicant's intended appeal from those orders is "without reasonable ground". If so, leave to appeal must be refused.
3. The applicant made plain that he does not want his application determined in the parties' absence in accordance with r 13.38 and Pt 5.3 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth). Nevertheless, the application is determined in that fashion, as the Act permits (ss 102QAE(4), 102QAF(3) and 102QAF(4)).

1. The applicant relied upon his affidavit filed on 7 May 2025 as the evidence in support of his application, annexed to which is the draft Notice of Appeal he wants leave to file.
2. The applicant complied with s 102QAE(3)(a) of the Act by confirming he has not previously applied for leave to institute proceedings.
3. However, the applicant arguably failed to comply with the additional requirement prescribed by s 102QAE(3)(b) of the Act, as he failed to disclose in his affidavit the full extent of his litigious ardour when that must surely be a "relevant fact" in the enquiry.
4. Three different causes have been prosecuted under Pt VII of the Act over the last seven years (at [201]). Interlocutory and final orders made within those causes have had to be enforced more than once due to breaches by the applicant (at [19], [21], [25], [64], [129(c)], [203], [206] and [207]). The applicant has appealed unsuccessfully on no less than four occasions, though some appeals were voluntarily discontinued and others were dismissed (at [21] and [45]). He also made an application to the High Court of Australia for relief, which was dismissed as an abuse of process (at [46]). The applicant also filed and withdrew a contravention application against the respondent (at [47] and [58]). He also omitted to reveal he has made, or intends to make, formal complaints of incompetence against authorities, such as the police and the State child welfare agency (at [67]).
5. The application could be dismissed for the failure to faithfully comply with s 102QAE(3)(b) of the Act but, to avoid the applicant thinking his application is dismissed for a technicality, it is instead dismissed for lack of merit.

1. Attention must turn then to the ostensible merit of the proposed appeal to demonstrate how it lacks "reasonable ground". Some initial observations about the appeal are helpful to illustrate its narrowness.

1. The intended appeal challenges only a selection of the orders made by the primary judge, being:

(a) some parenting orders affecting the parties' youngest child (Orders 3, 4, 5 and 6);

(b) the parenting order governing the parties' exchange of their two youngest children during school holidays (Order 13);

(c) the injunction restraining the applicant's place of residence (Order 24); and

(d) the harmful proceedings injunction made against the applicant (Order 28).

1. There are 22 grounds of appeal, though their characterisation as legal, factual or discretionary errors is not correctly reflected by the groupings adopted by the applicant within the draft Notice of Appeal.

1. None of the intended grounds of appeal ostensibly challenge the validity of the harmful proceedings injunction made against the applicant (Order 28), even though it is expressly nominated as an appealed order in the draft Notice of Appeal.
2. Even so, both these orders were made with the applicant's consent - or at least without his opposition.
3. In respect of the residential injunction, the primary judge said this in the reasons for judgment:
   1. For his part, [the applicant] told the Court that he is no longer seeking to relocate to [City B] which was a move he had made in the past to protect the children and remove them from the familial conflict.

...

1. The proposed restraint on [the applicant] and his agents changing the children's address outside the state of Victoria was agreed and consistent with [the applicant's] evidence as to his future intentions. This is an important issue in this case having regard to his prior unilateral relocation of the children to Queensland and it is appropriate that there be such restraint by order of the Court.

1. In respect of the harmful proceedings injunction, the primary judge said this in the reasons for judgment:
   1. [The applicant] did not oppose the harmful proceedings order provided that it was of mutual application to [the respondent] and on the basis that would operate as a measure to protect the children from further litigation. In response to the concern about the potential necessity for future recovery order proceedings, [the applicant's] counsel submitted that the question of leave under s.102QAE and the ex-parte application could be decided at one hearing and there would be no prejudice.

...

1. ... [The applicant's] frank evidence about his past difficulties with complying with Court orders, and the harm likely to be occasioned on his children if this were to continue, is a relevant matter to be taken into account.

...

1. For the above reasons and in the particular circumstances of this case, I am satisfied that there are reasonable grounds to believe that the criteria at s.102QAC(1)(a) and (b) are met and will make harmful proceedings orders against [the applicant] and [the respondent] respectively.

1. Orders made by consent may be the subject of an appeal in the same way as any other order (Gilbert v Estate of Gilbert [1989] FamCA 95; (1990) FLC 92-125 at 77,839). However, that proposition is subject to an important qualification. The correctness of an order cannot be appealed on its merits by a party who assented to the order, in respect of which the right of appeal is limited to grounds which either vitiate the anterior agreement between the parties (such as fraud, mistake, or fresh evidence) or the integrity of the order itself (such as an absence of jurisdiction or lack of power to make it) (Harvey v Phillips [1956] HCA 27; (1956) 95 CLR 235 at 244; Allan and Ors & Allan and Ors [2014] FamCAFC 162; (2014) FLC 93-606 at [59]-[65]).
2. None of the grounds of appeal purport to challenge either Order 24 or Order 28 on such limited premises, in which event the proposed appeal evinces no merit at all in respect of those orders.
3. Ground 1 does generically allege the respondent's "fraud and perjury", but such allegations relate to orders formerly made in 2022. The appeal which the applicant seeks leave to bring only lies from the orders made in April 2025. The intended appeal is not a vehicle for raising every grievance collected by the applicant from even before the most recent proceedings were commenced in March 2023.

1. Order 12 provides for the children to be exchanged at school during school terms.
2. Order 13 makes provision for exchange of the children during school holidays in these terms:
   1. During the school holidays, changeover shall be effected by [the applicant] who shall deliver the child/ren to [the respondent's] home at the commencement of time and collect the child/ren at the conclusion of time and remain in their vehicle during changeover.
3. The litigious history of the parties is instructive context for this order.
4. In August 2019, final parenting orders were first made between the parties with their consent. The children were ordered to be exchanged at a local restaurant (Order 1.10).
5. In October 2021, final parenting orders were again made between the parties. This time, for the purpose of spending time with the children in Melbourne, the applicant was ordered to collect the children from and return them to the respondent's home (Order 19).
6. At the trial before the primary judge in February 2025, the applicant proposed the children be exchanged at a shopping centre, but that was only in expectation of the children all living with him. He did not advance a fall-back proposal for the exchange of the youngest child if she instead continued to live with the respondent. The respondent proposed that the youngest child continue to live with her and that she be collected from and returned to her home by the applicant or his nominee - just as the former orders made in October 2021 stipulated.
7. With the issue having been given little, if any, discrete attention in the trial, the primary judge said this in the reasons for judgment to justify Order 13:
   1. In relation to changeovers, the ongoing interim arrangements provide for [the applicant] to effect the changeovers which is understood to complement the interim family violence intervention orders. [The respondent] expressed her position that [the applicant] should conduct changeovers and not his family members. She alleged to have been threatened in the past by [the applicant's] brother upon changeover and to have been alleged to have harassed [the applicant's] partner and that [the youngest child] has claimed [the applicant's] partner does not want to pick her up from school. [The applicant] told the Court that most changeovers happen at school however, in the school holidays, he was always forced to do it and felt the need to bring a witness on each occasion because of something [the respondent] might do (usually his partner, in the past his dad or his brother). Ordinarily he stays in the car for changeover, except for one time which resulted in a Court order for him to stay in the car.

...

1. Changeovers are able to continue mostly at school.
2. There are limited few occasions remaining when the parents need to facilitate changeovers during school holidays. Beyond [the respondent's] perhaps understandable preference, there is insufficient evidence to support a change to the ongoing interim arrangements in this respect. Those arrangements are consistent with the interim family violence intervention order and require all persons to remain in the vehicle at changeover such that there ought be no interaction between them and [the respondent]. I will order accordingly.

1. None of the grounds of appeal appears to challenge Order 13 in isolation. The challenge to it apparently hinges of the success of the challenge to Orders 3, 4, 5 and 6, such that if the youngest child's residence with the respondent is successfully appealed, so must the attendant order about how the youngest child is exchanged between them.

1. Accordingly, the intended appeal devolves to a challenge to the orders which provide for the respondent to have sole parental responsibility for the youngest child (Order 3), for the youngest child to live with the respondent (Order 4), and for the youngest child to spend substantial time and communicate with the applicant (Orders 5 and 6).
2. As the primary judge recognised, the parties' proposals in respect of the youngest child were virtually a mirror-image (at [10] and [113]). Each proposed having sole parental responsibility for her, agreeing they could not share such responsibility (at [79]-[82] and [121]). Each proposed that the child live with him or her and each proposed the child should spend time and communicate with the non-residential parent (at [116]). The Independent Children's Lawyer ("the ICL") supported the respondent's proposal (at [113] and [119]).
3. Her Honour found in favour of the proposal jointly advanced by the respondent and the ICL because there was no genuine risk to the youngest child's safety in the home of either party (at [166]), the benefit to the youngest child from spending more time with her siblings in the applicant's household was outweighed by the need to promote her secure relationship with the respondent (at [158] and [168]), and the perpetuation of the existing interim parenting arrangement was in the child's best interests (at [169]).
4. Those conclusions, which reflect in the few parenting orders from which the applicant now wants to appeal, comprised a discretionary judgment, the available grounds of appeal from which are well settled (House v The King (1936) 55 CLR 499 at 504-505). The applicant must be able to demonstrate some material legal, factual or discretionary error.
5. Discretionary errors are either failing to take a material consideration into account or taking an immaterial consideration into account. If no such frank error can be demonstrated, the applicant may alternatively demonstrate the judgment was manifestly unreasonable or unjust, though such a miscarriage of discretion is rarely sustained (Norbis v Norbis [1986] HCA 17; (1986) 161 CLR 513 at 539-540; Gronow v Gronow (1979) 144 CLR 513 at 519-520).
6. Here, the applicant does not contend the parenting orders in respect of the youngest child were manifestly unreasonable or unjust. Instead, he complains of multiple frank legal, factual and discretionary errors, supposedly evident from the reasons for judgment and the transcript. But in the absence of a ground contending for a manifestly unreasonable result, it must follow that the multiple grounds which complain only of insufficient weight being given to some aspects of the evidence (Grounds 8, 9 and 18) are incompetent (Hedlund & Hedlund [2021] FedCFamC1A 84; (2021) FLC 94-065 at [12] and [36]-[37]).
7. In respect of the many remaining grounds, this Court is entitled to be gravely circumspect about the merit of them all (Tame v NSW [2002] HCA 35; (2002) 211 CLR 317 at 345; Penrith Whitewater Stadium Ltd v Lesvos Pty Ltd [2007] NSWCA 103 at [8]). An essential ground is easily obscured by so many pleaded grounds of appeal (Thorne v Kennedy [2017] HCA 49; (2017) 263 CLR 85 at [49]), though surveillance of the residual grounds reveals no essential ground is obscured.
8. Ground 20 alleges the applicant was denied procedural fairness because of decisions made at an anterior procedural hearing, when directions were made to ensure the readiness of the cause for trial. The applicant alleges he was refused permission to rely on "numerous relevant witnesses" but, even if true, that of itself could not have been an error. The Court is expressly empowered to take a proactive approach to adversarial trials in parenting causes under Pt VII of the Act (ss 69ZN, 69ZP(a), 95(1), 95(2) and 97(3)), including by making strategic decisions about the evidence which may be adduced and the witnesses who may be called (ss 69ZQ(1)(a), 69ZX(1)(a), 69ZX(2)(g), 69ZX(2)(h) and 69ZX(2)(j)).
9. It must be remembered the parties' contest was ultimately quite narrow, confined to with whom the youngest child should primarily live. They agreed the designated primary carer should have sole parental responsibility for the youngest child and that the child should spend extensive amounts of time with the non-residential parent. By conceding the youngest child should spend extensive amounts of time with the respondent, the applicant inferentially acknowledged the respondent was a competent parent, even if he believed he possessed superior parenting capacity. In that context, it is difficult to see what (if any) advantage the applicant would have derived from extra evidence or additional witnesses, given the expansive nature of the evidence upon which he was permitted to rely (at [7] and Annexure A).
10. Grounds 2, 4 and 6 allege legal errors by the wrongful application of ss 4AB(1), 60CC(2)(a) and 60CC(2A) of the Act. These provisions of the Act respectively define "family violence", enjoin the Court to make parenting orders which promote children's safety from either the subjection or exposure to family violence, abuse or neglect, and require the Court to consider evidence about any historical family violence, abuse or neglect.
11. Despite the allegations of legal error, the primary judge correctly recited the applicable legal principles (at [107]-[110] and [128]) and accurately acknowledged the nature of the case advanced by the applicant (at [51] and [114]-[116]). The applicant refuted the rather obvious proposition that his case about risk tended to be inconsistent with the parenting proposal he advanced (at [56]). So far as the applicant's allegation against the respondent of being a safety risk was concerned, the primary judge found both parties had exposed the children to behaviour which compromised their physical and emotional safety (at [129]-[133]) and each party implicitly conducted their case on the premise the youngest child was not at an "unacceptable level of risk [of harm]" in the care of the other (at [134]). No legal error is apparent.
12. Grounds 10, 13 and 15 allege factual errors in respect of the evidence. The alleged errors to which those ground relate are seemingly inconsequential to the ultimate result, in which event they could not sustain the appeal even if established (De Winter and De Winter (1979) FLC 90-605), but just as importantly they are drafted in the form of (unproven) assumptions by the applicant about what her Honour did and did not find.
13. Grounds 1, 3, 5, 11, 12, 14, 16, 17, 18, 19 and 20 all allege the primary judge wrongly failed to consider various relevant aspects of the evidence but, again, they are assumptions about what material was overlooked. The primary judge carefully identified the evidence before the Court (at [7] and Annexure A). There is an obvious and important difference between, on the one hand, overlooking evidence altogether and, on the other, paying some identified parts of the evidence less heed than was urged by one party. Her Honour was not obliged to mention every piece of evidence in the reasons for judgment (Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 at [41]; Whisprun Pty Ltd v Dixon [2003] HCA 48; (2003) 200 ALR 447 at 463-464).
14. Ground 7 alleges the primary judge wrongfully relied upon "conclusions reached by Victoria Police" and erred by failing to appreciate that a "lower threshold of proof" applied in the parenting proceedings. Presumably the applicant is referring to the civil standard of proof which applied in the proceedings before the primary judge and contrasted it with the criminal standard of proof which applied in parallel criminal proceedings in which the parties were involved.
15. At multiple points in the reasons for judgment the primary judge referred to parallel proceedings before State courts in respect of both criminal conduct (at [16], [29], [153] and [160]) and family violence applications (at [16], [22], [28], [36], [38], [40], [44], [49], [131], [153] and [160]). The criminal standard of proof applied in respect of any charges brought concerning the former, but the civil standard of proof applied to the latter. The primary judge was empowered to adopt any recommendation, finding, decision or judgment of the State courts when determining these proceedings (s 69ZX(3)(b)). Perusal of the reasons does not reveal any error in her Honour's interpretation of the orders made by State courts.

1. The grounds of appeal appear bereft of merit. Lacking any "reasonable ground", the appeal is vexatious and so the application for leave to bring it must be dismissed.

I certify that the preceding fifty-seven (57) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Austin.