Smith v Birchall [2025] FCA 1256

1. The present application is supported by an affidavit that Ms Smith swore in support of it on 31 December 2024. To that affidavit are annexed the Rejected Documents and some correspondence sent to and by Ms Smith in connection with the Filing Refusal (some details about which are stated below).
2. As is customary, the respondent filed a submitting notice and took no part in the application. The matter proceeded to trial on Wednesday, 8 October 2025. Ms Smith was ably represented by Dr Orow, of counsel, from whom the court received helpful written submissions (to the content of which I shall shortly return).

1. Ms Smith holds strong views about the efficacy of Australia's federal system of family law; and, in particular, about the manner in which it treats (or, as she might say, mistreats) children and their parents. It is unnecessary that I should particularise those views; for present purposes, it suffices merely to acknowledge them.
2. By the Rejected Documents, Ms Smith sought to commence in this court an application against the office of the Commonwealth Attorney-General for various species of declaratory relief concerning the constitutional validity of the Family Law Act 1975 (Cth) (the "FL Act"). In short, Ms Smith hoped to invalidate the whole of the FL Act - or, alternatively, identified parts of it - on the grounds that it was (or they were):

...unconstitutional and invalid because, inter alia, [they] are contrary to the rule of law and impermissibly burden rights and freedoms under the Commonwealth of Australia Constitution Act 1901. Further and in the alternative, these laws are not laws made for the peace order and good government of the Commonwealth and are not supported by sub-sections XXI or XXII or XXVIII of section 51 of the Commonwealth of Australia Constitution Act 1901 or any other head of power under the said section 51 or any other provision of that Act.

1. It is sufficiently clear - perhaps to the point that my noting it might be unnecessary - that the references to the "Commonwealth of Australia Constitution Act 1901" are to be read as references to the Constitution, rather than to the imperial enactment (of 1900) of which it originally formed part.
2. In her supporting affidavit of 17 December 2024 (which comprised part of the Rejected Documents), Ms Smith deposed as follows:
   1. Previously, I have written to the Attorney General, the Prime Minister and the Minister for Women in relation to the issues raised in this application. They responded saying, in broad terms, that these are matters for the courts to resolve. This is why this application is the only avenue available to any person aggrieved by the family law legislation.
   2. Subject to what was said above (in relation to the need for further affidavit material), I now provide objective evidence upon which I rely to sustain my originating motion that shows that the family law system in Australia, in its operation and effect, has been an abysmal failure because it has created a framework that facilitated and encouraged physical, psychological and emotional harm to children and their parents. In addition, it created a framework for the perpetration and/or continuation of family violence and economic abuse of women.
   3. It is clear from the terms of the [FL Act] that it contains provisions designed to give an impression of a sound system - but the reality (operation and effect) is that the system is far from the illusion that it creates and the claims it makes in form. In other words, the constitutionality of the legislation is determined by reference to its substance not its form.
   4. I will articulate the constitutional bases upon which I rely to sustain the relief sought in my originating motion in submissions at the trial of this proceeding. However, it is sufficient to note that the exercise of power to enact the family law system (by enactment of the Family Law Act 1975) is unconstitutional because it is not supported by a head of power under the Commonwealth Constitution and, in any event, such power is not exercised for the peace, order and good government of the Commonwealth of Australia as mandated by the Constitution. Further, it is not only contrary to the rule of law but also to the structure of the Australian Constitution which is such as to permit the implication of rights to protect children from systemic harm - as in this case the harm afflicted by the family law system. Further, the family law system is in breach of Australia's international law obligations prescribed in treaties to which Australia is a signatory.

1. Thereafter, Ms Smith deposed to a series of representations that were said to have been made by, amongst others, the former Commonwealth Attorney-General, the Honourable Mark Dreyfus, and the former Chief Justice of what was formerly known as the Family Court of Australia, the Honourable Justice Nicholson QC. Those representations were, in summary, statements of opinion about the operation of Australia's federal system of family law; and, more particularly, statements of unflattering opinion about the adverse impacts that it has (or was suggested to have) a tendency to visit upon those who are subjected to it.
2. The Rejected Documents were received by the court on 17 December 2024. On 20 December 2024, the respondent wrote to Ms Smith about them in the following terms (emphases original):

RE: DOCUMENTS PRESENTED FOR FILING ON 17 DECEMBER 2024

I refer to the following documents presented via email to the Victorian Registry of the Federal Court of Australia:

(a) Originating Application dated 17 December 2024; and

(b) Affidavit of Sonia Naomi Smith sworn 17 December 2024,

together, the Documents.

In the Documents, you seek declarations that several provisions or parts of the Family Law Act 1975 (Cth) are unconstitutional and invalid. The Documents have been referred to me for consideration as to whether the Registry should accept them for filing.

Rule 2.26 of the Federal Court Rules 2011 (Cth) states that a Registrar may refuse to accept a document (including a document that would, if accepted, become an originating application) if the Registrar is satisfied that the document is an abuse of the process of the Court, or is frivolous or vexatious on the face of the document, or by reference to any documents already filed or submitted for filing with the document.

The meaning of the terms "frivolous", "vexatious" were considered by Justice White in Ferdinands v Registrar Cridland [2021] FCA 592 at [27]- [30]. A matter that is frivolous may be described as one that is "without substance or groundless or fanciful" and a matter that is vexatious is an abuse of the process of the Court. The term abuse of process includes an application which has no cause of action properly stated and no prospects of success.

I am satisfied that the contents of the Documents disclose no properly stated cause of action and embody an application that is fanciful and with no reasonable prospects of success. As such, the Documents are frivolous. vexatious and to accept them for filing would be an abuse of process of the Court.

I recommend you seek independent legal advice in relation to this matter prior to filing any further documents with the Court.

I enclose the Documents by way of return.

1. On 23 December 2024, Ms Smith wrote to the respondent in the following terms (emphases original):

I refer to your email below and letter dated 20 December 2024. In that letter, you rely on Rule 2.26 of the Federal Court Rules 2011 to support your decision to refuse filing. Your reasons are:

"I am satisfied that the contents of the Documents disclose no properly stated cause of action and embody an application that is fanciful and with no reasonable prospects of success. As such, the Documents are frivolous, vexatious and to accept them for filing would be an abuse of process of the Court."

I have obtained legal counsel advice. It is clear, with respect, that you have misconceived your powers under Rule 2.26 and misunderstood the purpose of that rule. To that end, I refer you to the decision of the Full Federal Court in Nyoni v Murphy [2018] FCAFC 75. In that case the Full Court said:

"[38] ... a Registrar acting under r 2.26 does not have power to adjudicate under the substantive law whether an application that a party seeks to bring is an abuse of process (or is frivolous or vexatious). The Registrar has no judicial power to determine substantively whether a claim must be dismissed because it is an abuse of process (or is frivolous or vexatious). Rather, r 2.26 is the means by which an administrative requirement is expressed that all documents filed in the Registry must not in their form and content (irrespective of any substantive assessment of their merit) be an abuse of the process of the Court or frivolous or vexatious."

You have done exactly what the Full Court said you are not empowered to do. I urge you to reconsider your decision to avoid the expense of bringing an ADJR application and the delay that would be occasioned by such an application.

There is significant media interest in this application and I intend to provide a copy of the Application and your letter to the media so that the public can be informed of how court processes are misused to stifle the exercise of rights of Australian citizens to challenge commonwealth laws.

Can you please as a matter of urgency advise whether the Application will be received for filing today to ensure an accurate reporting by the media and whether it is necessary to proceed with an Application for Judicial Review.

1. On 24 December 2024, the respondent wrote again to Ms Smith about the Rejected Documents (emphases original):

RE: DOCUMENTS PRESENTED FOR FILING ON 17 DECEMBER 2024

This letter is sent in answer to your email received by the Court at 2:20pm on 23 December 2024, a copy of which appears in the email thread covering this letter. This letter is supplementary to my letter dated 20 December 2024.

In the third paragraph of my letter, I described the determination to be made by the registrar under r 2.26 of the Federal Court Rules 2011 as being 'on the face of the document or by reference to any documents already filed or submitted for filing with the document' (emphasis added). My satisfaction as to the contents of the Documents, as expressed in the fifth paragraph of my letter, was reached on the face of the Documents. It was not, and did not purport to be a substantive and judicial adjudication or determination of the matter as contemplated in paragraph 38 of Nyoni v Murphy [2018] FCAFC 75 (read as a whole and in context). My decision was an administrative decision.

1. The present application was commenced a few days later.

1. Presently, Ms Smith moves the court for relief under the ADJR Act. Under the heading, "Grounds of application", her originating application explains as follows (errors original):

Grounds of application

This application for judicial review is made pursuant to s 5(1) of the ADJR Act. The Applicant applies to the Federal Court of Australia for an order of review in respect of the decision of Judicial Registrar Birchall (the decision is contained in two letters dated 20 December 2024 and 24 December 2024) making a determination under r 2.26 of the Federal Court Rules 2011 (Cth) refusing to accept documents (application and supporting affidavit) filed by the Applicant (that if accepted would become an originating application) on ground that the Respondent registrar was satisfied that the contents of the document disclose no properly stated cause of action and embody an application that is fanciful and [without] reasonable prospects of success. As such the documents are frivolous, vexatious and to accept them for filing would be an abuse of process of the Court (decision). The grounds upon which the applicant relies are these:

1. That, within section 5(c) of the ADJR Act, the Respondent registrar who purported to make the decision did not have jurisdiction to make the decision;

Particulars: the Respondent registrar purported to exercise judicial power by making a determination as to whether the documents disclose a cause of action and whether the application has reasonable prospects of success.

1. That, within section 5(d) of the ADJR Act, the decision was not authorized by r 2.26 of the Federal Court Rules 2011 in pursuance of which it was purported to be made;

Particulars: r 2.26 of the Federal Court Rules 2011 did not authorize the Respondent registrar to make a determination as to whether the documents disclose a cause of action and whether the application has reasonable prospects of success.

1. That, within section 5(e) and 5(2) of the ADJR Act, the making of the decision was an improper exercise of the power conferred by r 2.26 of the Federal Court Rules 2011 in pursuance of which it was purported to be made;

Particulars: the Respondent registrar exercised the powers under the Federal Court Rules 2011 (i) for a purpose other than a purpose for which the powers are conferred and (ii) in a manner that is so unreasonable that no reasonable person could have so exercised the powers;

1. That, within section 5(f) of the ADJR Act, the decision involved an error of law, whether or not the error appears on the record of the Decision;

2. That, within section 5(j) of the ADJR Act, the Decision was otherwise contrary to law.

Particulars to grounds 4 & 5: the Respondent registrar misconstrued the purpose and operation of r 2.26 of the Federal Court Rules 2011.

1. Section 5 of the ADJR Act relevantly provides as follows:

(1) A person who is aggrieved by a decision to which this Act applies that is made after the commencement of this Act may apply to the Federal Court or the Federal Circuit and Family Court of Australia (Division 2) for an order of review in respect of the decision on any one or more of the following grounds:

(a) that a breach of the rules of natural justice occurred in connection with the making of the decision;

(b) that procedures that were required by law to be observed in connection with the making of the decision were not observed;

(c) that the person who purported to make the decision did not have jurisdiction to make the decision;

(d) that the decision was not authorized by the enactment in pursuance of which it was purported to be made;

(e) that the making of the decision was an improper exercise of the power conferred by the enactment in pursuance of which it was purported to be made;

(f) that the decision involved an error of law, whether or not the error appears on the record of the decision;

(g) that the decision was induced or affected by fraud;

(h) that there was no evidence or other material to justify the making of the decision;

(j) that the decision was otherwise contrary to law.

1. For present purposes, it must be accepted that the Filing Refusal qualifies as "a decision to which [the ADJR] Act applies" and that Ms Smith is a person who is aggrieved by it.
2. Section 16 of the ADJR Act identifies this court's powers in applications commenced under s 5(1). Relevantly, it provides:
   1. Powers of the Federal Court and the Federal Circuit and Family Court of Australia (Division 2) in respect of applications for order of review

(1) On an application for an order of review in respect of a decision, the Federal Court or the Federal Circuit and Family Court of Australia (Division 2) may, in its discretion, make all or any of the following orders:

(a) an order quashing or setting aside the decision, or a part of the decision, with effect from the date of the order or from such earlier or later date as the court specifies;

(b) an order referring the matter to which the decision relates to the person who made the decision for further consideration, subject to such directions as the court thinks fit;

(c) an order declaring the rights of the parties in respect of any matter to which the decision relates;

(d) an order directing any of the parties to do, or to refrain from doing, any act or thing the doing, or the refraining from the doing, of which the court considers necessary to do justice between the parties.

1. Rule 2.26 of the Federal Court Rules 2011 (Cth) (the "FC Rules") assumes some significance. It provides as follows:

2.26 Refusal to accept document for filing - abuse of process or frivolous or vexatious documents

A Registrar may refuse to accept a document (including a document that would, if accepted, become an originating application) if the Registrar is satisfied that the document is an abuse of the process of the Court or is frivolous or vexatious:

(a) on the face of the document; or

(b) by reference to any documents already filed or submitted for filing with the document.

1. Ms Smith maintains that, by the Filing Refusal, the respondent must be understood to have purported to exercise judicial power, in that he made a determination as to whether or not the Rejected Documents identified a cause of action with reasonable prospects of success.
2. It should hardly require noting that registrars of the court are not competent to exercise judicial power. In Bizuneh v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 42; (2003) 128 FCR 353, 357 [15]-[16], the full court (Lee, Whitlam and Jacobson JJ) described the purpose of a predecessor to r 2.26 as:

...permitting the Registrar to refuse to accept or issue a document without the Registrar being required to obtain authority from a judge so to act. The first point to note in the construction of the rule is that [it] is directed to administration of registries of the Court. The purpose of [the rule] is to assist the Registrar to maintain efficient operation of a registry and, thereby, the Court. Even without a rule...it may be thought that it would be implied that a Registrar would have the power, or be under a duty, to protect Court procedures from abuse by refusing to accept a document for lodgement or filing which, on its face, would be an abuse of court process or frivolous or vexatious.

No judicial act is carried out by the Registrar in so acting. The Registrar continues to perform an administrative function, albeit that the act of the Registrar may bear upon the ultimate performance of judicial power.

1. More recently in Nyoni v Murphy [2018] FCAFC 75; (2018) 261 FCR 164, 171 [38], the full court (Barker, Banks-Smith and Colvin JJ) noted of the rule in its present form that:

...a Registrar acting under r 2.26 does not have power to adjudicate under the substantive law whether an application that a party seeks to bring is an abuse of process (or is frivolous or vexatious). The Registrar has no judicial power to determine substantively whether a claim must be dismissed because it is an abuse of process (or is frivolous or vexatious). Rather, r 2.26 is the means by which an administrative requirement is expressed that all documents filed in the Registry must not in their form and content (irrespective of any substantive assessment of their merit) be an abuse of the process of the Court or frivolous or vexatious.

1. A refusal to accept documents for filing under r 2.26 of the FC Rules does not - indeed, cannot - involve the exercise of judicial power, nor any substantive assessment or judgment of the merits of a proposed claim: Kitoko v Registrar, Registry of New South Wales, Federal Court of Australia [2023] FCA 1056, [41] (Halley J).
2. With those points of principle acknowledged, something may be said about the nature of the court's discretion under s 16 of the ADJR Act. The discretion is one that arises both in respect of whether relief ought to be granted and, if so, the form that it should assume. However, questions such as those arise only where some basis for relief has been established: Lamb v Moss [1983] FCA 254; (1983) 76 FLR 296, 312 (Bowen CJ, Sheppard and Fitzgerald JJ) ("Lamb v Moss"), cited in Davis v Military Rehabilitation and Compensation Commission [2024] FCA 322, [71] (Meagher J). The discretion must be exercised judicially: Lamb v Moss, 312 (Bowen CJ, Sheppard and Fitzgerald JJ).
3. At the hearing of the present application, Ms Smith sought to impress upon the court that her contentions about the want of constitutional authority by which she says that the FL Act is attended are at least arguable. That being so, she says that it was not open to the respondent to make the Filing Refusal; or, at the least, that his doing so involved error of the kind that this court should correct by granting relief under s 16 of the ADJR Act.
4. The substantive application that was the subject of the Filing Refusal was - or, at the very least, was intended to be - an application under s 39B of the Judiciary Act 1903 (Cth). The proposed respondent to it - the Commonwealth Attorney-General - is an officer of the Commonwealth. It was not explained how the current holder of that office might be accountable for any want of constitutional authority inherent in legislation that was passed 50 years ago; but that can be overlooked momentarily. Section 39B(1A) of the Judiciary Act 1903 (Cth) confers upon this court original jurisdiction in matters arising under the Constitution and it may be accepted, at least for present purposes, that the exercise of that jurisdiction could involve the granting of declaratory relief.
5. What, then, might be said of the contentions that underlie the constitutional challenge that Ms Smith hoped (and still hopes) to prosecute? It is apparent on the face of the Rejected Documents - and from the evidence and submissions that were advanced in the present application - that Ms Smith's challenge to the constitutional validity of the FL Act (or, alternatively, to the identified parts thereof) is founded upon an invitation to the court to condemn the manner in which Australia's federal system of family law operates in practice. It is said that, by reason of its practical manifestations - a limited précis of which Ms Smith sought to catalogue by her 17 December 2024 affidavit - the FL Act may be impugned as "contrary to the rule of law", offensive to "implied rights and freedoms under [the Constitution]" and enacted otherwise than for the "peace, order, and good government" of the Commonwealth. At the hearing of the application, Dr Orow added a fourth characterisation: namely, that the FL Act operated contrary to international law. It seems also to be suggested - perhaps only faintly - that the FL Act is not, by nature, an enactment about any of the subjects that s 51 of the Constitution reserves for the Commonwealth Parliament.
6. Presently, it is impossible to see - and it was not explained - how a law passed in the orthodox way by the Commonwealth Parliament might properly be impugned as contrary to the rule of law (even accepting the want of precise definition by which that turn of phrase is necessarily associated). Plainly, there are notions that accumulate in recognition of what many conveniently (if summarily) describe as "the rule of law": for example, that laws should apply with equal force to governments and their citizens; that they should apply without concern for social status, religion, wealth or office; and that they should be subject to enforcement by an independent judiciary. The modern and democratic "rule of law" is sometimes distinguished from what Aristotle (amongst others) described as the "rule of man"; specifically, to denote systems of public order that are typified by clarity, predictability, universality and accountability (both legal and democratic), rather than by subjection to the whims of the powerful. I say again: how the democratic passage of the FL Act and its enforcement by an independent judiciary might be impugned as contrary to the rule of law is not apparent (and nor has it been explained). As a proposition upon which Ms Smith might base a claim to relief in this court - and, thereby, to invalidate part or all of the FL Act as beyond the constitutional mandate of the Commonwealth Parliament - it is meritless.
7. I should not wish, by anything said thus far, to doubt - or to be misunderstood as expressing any opinion about - the shortcomings that Ms Smith attributes to Australia's federal system of family law. I have no reason to doubt (and I do not doubt) that the strong feelings that she holds about it are held by many; nor that her grievances (and those of others) might fairly be held and pursued in other contexts. None of that is territory upon which this court might properly tread. Irrespective of whether or not the FL Act is a "good" or "bad" piece of legislation, or gives effect to good or bad public policy, what cannot be accepted is that Ms Smith has any prospect of convincing this court that part or all of it lacks constitutional validity because, by reason of the effects that it visits or has visited on her or others, it is "contrary to the rule of law".
8. Likewise, I do not accept that there might be any prospect that Ms Smith could successfully contend in this court that the FL Act operates, as a whole or in part, so as "...impermissibly [to] burden implied rights and freedoms under the [Constitution]". Pressed to identify the particular "implied rights and freedoms" against which the FL Act (or parts thereof) would be said to offend, Dr Orow was, with respect, unconvincing. He suggested that there were implied by provisions of the Constitution (or, perhaps, by the document as a whole) a "...right to safety, [a] right not to be abused by [the] law, [a] right not to be subjected to laws that cause...harm" and (perhaps by way of repetition or summary) a "...right not to be unjustly harmed by laws, mistreated, treated unequally, subjected to harm by others by force...of decisions made and orders made to that end". It was ultimately conceded that none of the subject matters inherent in those "rights" has ever been judicially recognised as one against which the Constitution implicitly guarantees that there will be no legislative trespass. This aspect of Ms Smith's proposed action has as good as no prospect of succeeding.
9. Ms Smith's appeal to the chapeau of s 51 of the Constitution - and its reference to the "peace, order, and good government of the Commonwealth" - is also foredoomed to failure. The High Court has repeatedly held that those words are not words of limitation: Bennett v Commonwealth [2007] HCA 18; (2007) 231 CLR 91, 125 [92] (Kirby J) ("Bennett"), citing (amongst others) Union Steamship Co of Australia Ltd v King [1988] HCA 55; (1988) 166 CLR 1, 10 (Mason CJ, Wilson, Brennan, Deane, Dawson, Toohey and Gaudron JJ). It is no part of the judicial function to pass judgment upon the policy considerations that guide what democratically elected parliaments are inclined to enact: Polyukhovich v The Commonwealth [1991] HCA 32; (1991) 172 CLR 501, 636 (Dawson J). To employ the nomenclature of the Constitution: whether the peace, order and good government of the Commonwealth requires legislation in the form of the FL Act (or its constituent parts) is a "Chapter I" question, not a "Chapter III" question.
10. The suggestion that the FL Act is not one regarding a subject matter or subject matters in respect of which s 51 of the Constitution confers legislative power was, as I have said, perhaps only faintly maintained. It may swiftly be addressed. The Commonwealth Parliament is competent to make laws with respect to "marriage" and to "divorce and matrimonial causes; and in relation thereto, parental rights, and the custody and guardianship of infants": Constitution, s 51(xxi) and (xxii). The suggestion that the FL Act is not such a law - and that it is only now, 50 years after it was enacted, that anybody has realised - should not seriously be entertained. It is not a contention by which the necessarily limited resources of the court should be burdened.
11. Finally, it is anything but apparent to me how Ms Smith might be able to establish that the FL Act is, in whole or in part, unconstitutional because it is contrary to international law. Pressed to identify how that might be put, counsel for Ms Smith was unable to do so. There is, before me and on the face of the Rejected Documents, no basis upon which the court might properly identify even a remotely arguable case that the FL Act is relevantly "contrary to international law"; and it is all the less clear how any want of constitutional validity might arise even if it is. Respectfully, that aspect of Ms Smith's case is also meritless.
12. Ms Smith's complaints about the operation of Australia's federal system of family law are not complaints that can be entertained by this court. It is apparent beyond any real doubt that the case that she hoped to press by reason of the Rejected Documents was one that is properly described, as the respondent described it, as "...an abuse of the process of the Court, or [as] frivolous or vexatious".
13. That being so, the discretion that the court has under s 16 of the ADJR Act to grant relief in respect of the Filing Refusal should not be exercised. The originating application of 31 December 2024 should and will, therefore, be dismissed.

I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Snaden.