Ademis & Beauman - [2022] FedCFamC2F 1538

Federal Circuit and Family Court of Australia
(DIVISION 2)
Ademis & Beauman [2022] FedCFamC2F 1538

File number(s): MLC 2824 of 2022

Judgment of: JUDGE GLASS

Date of judgment: 17 November 2022

Catchwords: FAMILY LAW – VEXATIOUS PROCEEDINGS – consideration of s 102QB –where the mother contends that the father’s pattern of issuing and withdrawing or discontinuing applications leads to a conclusion that those proceedings are vexatious.

Legislation: Family Law Act 1975 (Cth), ss 4(1), s 102QB, 102Q

Cases cited:
Rilak & Tsocas [2020] FamCA 49

Safford & Kelso [2021] FedCFamC1F 165

Division: Division 2 Family Law

Number of paragraphs: 38

Date of last submission/s: 4 November 2022

Date of hearing: 4 November 2022

Place: Melbourne

Solicitor for the Applicant: Sayer Jones

Counsel for the Applicant: Ms Borger

Solicitor for the Respondent: Kenna Teasdale Lawyers

Counsel for the Respondent: Ms Bastick
ORDERS

MLC 2824 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR ADEMIS

Applicant

AND:
MS BEAUMAN

Respondent

order made by:

JUDGE GLASS

DATE OF ORDER:

17 November 2022

THE COURT ORDERS THAT:
1.All extant applications be dismissed.
2.Any application for costs be filed by way of written submissions within 14 days.
3.Any reply to any application for costs be filed by way of written submissions within 28 days.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Ademis & Beauman has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE GLASS

Mr Ademis and Ms Beauman have been involved in both parenting and property proceedings in this Court and have also litigated in the Magistrates’ Court of Victoria in relation to Intervention Order and criminal matters.
The parties separated in June 2016 and have one child together, Y, born in 2008.
Ms Beauman now seeks that Mr Ademis be declared a vexatious litigant. She proposes that he either be restrained from instituting proceedings under the Family Law Act 1975 (“the Act”), or alternatively, be restrained from instituting proceedings under the Act unless he also pays to the Court the sum of $50,000 by way of security of costs.
Despite the relief sought being final in nature,[1] neither party sought to cross-examine the other.
[1] Family Law Act 1975 (Cth), ss 102QB(5).
Statutory framework
Pursuant to section 102QB of the Act, I relevantly have a discretion…

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 Ademis & Beauman

Details

AGLC: Ademis & Beauman [2022] FedCFamC2F 1538
Case: [2022] FedCFamC2F 1538
Decision Date

CaseChat Overview and Summary

In the case of Ademis & Beauman, the Federal Circuit and Family Court of Australia (Division 2) was tasked with determining whether Mr Ademis had frequently instituted or conducted vexatious proceedings under section 102QB of the Family Law Act 1975. Ms Beauman sought a declaration that Mr Ademis be restrained from instituting proceedings under the Family Law Act or, alternatively, that he be restrained from instituting proceedings unless he paid a sum of $50,000 by way of security of costs. The court had to consider whether the pattern of issuing and subsequently withdrawing or discontinuing applications by Mr Ademis constituted vexatious proceedings, which were defined as proceedings that were an abuse of process, instituted or conducted to harass or annoy, to cause delay and detriment, or for another wrongful purpose, or instituted or pursued without a reasonable ground.

The court meticulously examined each of the seven applications filed by Mr Ademis, none of which Ms Beauman claimed were vexatious in isolation, but collectively, she argued, they amounted to vexatious proceedings. The court found that none of the applications, taken individually, could be characterized as vexatious. For instance, the first application filed by Mr Ademis was discontinued after the parties had made progress on parenting arrangements, and the court found no evidence that it was vexatious. Similarly, the application for an Intervention Order was found to have a reasonable basis and was not retaliatory. While the joinder applications were misguided, they were not without reasonable ground as they sought disclosure relevant to the ongoing proceedings. The court concluded that the withdrawals of multiple applications did not render them vexatious as they were the result of agreements reached between the parties to negotiate or mediate further.

The court held that Mr Ademis had not instituted or conducted vexatious proceedings, and therefore, the discretion to grant the relief sought by Ms Beauman was not enlivened. The application was dismissed, and it was agreed that any costs applications would be dealt with by way of written submissions. The court's decision was based on a detailed analysis of each application and a consideration of the circumstances under which they were withdrawn or discontinued. The court emphasized that the determination of whether proceedings were vexatious required a careful assessment of each case's unique facts and circumstances.

Orders