Acres and Cannon (No 3) - [2016] FamCA 795

FAMILY COURT OF AUSTRALIA

ACRES & CANNON (NO 3)

[2016] FamCA 795

FAMILY LAW – PRACTICE AND PROCEDURE – Where the applicant father is subject to a s 102QB vexatious proceedings order – Where an application is made for leave to file an Initiating Application for parenting matters – Where the requirements of s 102QE have been met – Where the proceedings sought to be instituted are “vexatious proceedings” – Application for leave dismissed.

Family Law Act 1975 (Cth), ss 102Q, 102QB, 102QE, 102QF
Federal Court of Australia Act 1976 (Cth), ss 37AO, 37AR
Access to Justice (Federal Jurisdiction) Amendment Act 2012 (Cth)

Fuller v Toms (2015) 234 FCR 535
Gallo v Attorney-General (unreported, Supreme Court of Victoria, Starke J, 4 September 1984)
Garrett v Commissioner of Taxation (2015) 147 ALR 342
Mathews v Queensland [2015] FCA 1488
Mulhern v Bank of Queensland Ltd (No 3) [2015] FCA 927
Jones v Skyring (1992) 109 ALR 303
Langmeil & Grange [2013] FamCAFC 31
Re Garrett [2016] FCA 703

APPLICANT:

Mr Acres

RESPONDENT:

In the absence of the Respondent

INDEPENDENT CHILDREN’S LAWYER:

Independent Children’s Lawyer

FILE NUMBER:

HBC

155

2009

DATE DELIVERED:

20 September 2016

PLACE DELIVERED:

Sydney

PLACE HEARD:

Hobart

JUDGMENT OF:

Rees J

HEARING DATE:

30 August 2016

REPRESENTATION

THE APPLICANT:

In Person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr FitzGerald

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

FitzGerald and Browne

ORDERS
IT IS ORDERED

That the Application in a Case filed 18 November 2015 seeking leave to file an Initiating Application be dismissed.

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 Acres & Cannon (No 3) 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).

FAMILY COURT OF AUSTRALIA AT HOBART

FILE NUMBER: HBC 155 of 2009

Mr Acres

Applicant

And

In the Absence of the Respondent

Respondent

REASONS FOR JUDGMENT

Mr Acres (“the father”) is the father of the child S. The child was born in 2001 and will be 15 years old in December.
On 6 March 2014, the Family Court of Australia made orders pursuant to s 102QB of the Family Law Act 1975 (Cth) (“the Act”), prohibiting the father from instituting further proceedings under the Act in relation to the child without first having been granted leave to commence those proceedings pursuant to s 102QD of the Act (“the vexatious proceedings order”).
By an Application in a Case filed 18 November 2015, the father now seeks leave to file an Initiating Application seeking final parenting orders to the following effect:
1.That the applicant father…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Acres and Cannon (No 3)

Details

AGLC: Acres and Cannon (No 3) [2016] FamCA 795
Case: [2016] FamCA 795
Decision Date: 20 September 2016

CaseChat Overview and Summary

The application before Rees J in the Supreme Court of Victoria concerned an application for leave to file an Initiating Application. The parties involved were Acres and Cannon, with the specific nature of their dispute not detailed beyond the procedural step being contested.

The sole legal issue before the Court was whether to grant leave for the filing of an Initiating Application. This required the Court to consider the merits of the proposed application and whether it met the necessary threshold for proceeding.

Rees J dismissed the application for leave to file an Initiating Application. The reasons for this dismissal are not elaborated upon in the provided text, but the outcome signifies that the applicant did not satisfy the requirements for commencing proceedings at this stage.

Orders

Orders of the court

IT IS ORDERED

That the Application in a Case filed 18 November 2015 seeking leave to file an Initiating Application be dismissed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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