Bendon & Bendon - [2021] FamCA 396

FAMILY COURT OF AUSTRALIA
Bendon & Bendon [2021] FamCA 396

File number(s): DGC 672 of 2014

Judgment of: MCEVOY J

Date of judgment: 7 June 2021

Catchwords:
FAMILY LAW – CHILDREN – Rice & Asplund threshold hearing – previous final parenting orders were made in 2015 and 2017 – Whether the mother’s application to re-open proceedings and to have new parenting orders made should be struck out – Where the mother submits that her application should not be regarded as a Rice & Asplund application as the existing 2017 orders varied the 2015 orders and were not made following a final hearing on the merits – Where the mother submits that her application should not be struck out and says the fresh evidence before the Court demonstrating a change of circumstances is primarily that the children are older since the last orders were made and that the Court should infer that the limited contact between the children and the mother has been going well – Where the father submits that the mother’s application is entirely hopeless, not supported by probative evidence, and that none of the material produced by the mother amounts to changed facts and circumstances or fresh evidence –Where it is found that the mother is required to meet the threshold test and that she has failed to provide any evidence that there had been a material change in circumstances pursuant to the principles in Rice & Asplund – Application dismissed.

FAMILY LAW – PRACTICE AND PROCEDURE – Vexatious proceedings order – Where the father seeks a vexatious proceedings order against the mother under s102QB of the Family Law Act 1975 (Cth) – Where the mother has initiated most of but has not been successful in any of the litigation between the parties which has been on-going since 2014 – Where it is found that the mother has frequently instituted or conducted vexatious proceedings in relation to parenting issues – Order made against the mother pursuant to s 102QB.

FAMILY LAW – COSTS – Circumstances justifying order – Where father seeks costs against mother – Where it is found the mother’s conduct and that she has been wholly unsuccessful in relation to her applications for increasing time with the children justify the making of a costs order against the mother on a party/party basis.

Legislation: Family Law Act 1975 (Cth) s 102QB, 117

Cases cited:
Cardus & Lavrick [2020] FamCA 579

Defrey & Radnor [2021] FamCAFC 67

Rice & Asplund (1979) FLC 90-725

SBS & PLS (2008) FLC 93-365

Number of paragraphs: 26

Date of hearing: 7 June 2021

Place: Melbourne

Counsel for the Applicant Mr Levine

Solicitor for the Applicant Mr McMonnies

Solicitor for the Respondent Ms McGregor
ORDERS

DGC 672 of 2014

BETWEEN:
MS BENDON
Applicant

AND:
MR BENDON
Respondent

ORDER MADE BY:

MCEVOY J

DATE OF ORDER:

7 JUNE 2021

BY CONSENT IT IS ORDERED THAT:
1.The husband have 60 days from the date hereof to forthwith effect a refinance and transfer of the real…

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 Bendon & Bendon

Details

AGLC: Bendon & Bendon [2021] FamCA 396
Case: [2021] FamCA 396
Decision Date: 7 June 2021

CaseChat Overview and Summary

In the matter of *Bendon & Bendon*, McEvoy J of the Family Court of Australia considered an application by the mother to re-open parenting proceedings and make new parenting orders, despite previous final orders made in 2015 and 2017. The father sought to strike out the mother's application, arguing it was hopeless and unsupported by evidence, and also sought a vexatious proceedings order against the mother.

The court was required to determine whether the mother's application met the threshold test for re-opening proceedings under the principles established in *Rice & Asplund*, which requires evidence of a material change in circumstances. Additionally, the court had to consider whether the mother's conduct in initiating and conducting litigation since 2014 warranted a vexatious proceedings order under section 102QB of the *Family Law Act 1975* (Cth), and whether the mother should be ordered to pay the father's costs.

McEvoy J found that the mother had failed to provide any evidence demonstrating a material change in circumstances since the last parenting orders were made, and therefore her application did not meet the *Rice & Asplund* threshold. Consequently, the mother's application to re-open proceedings was dismissed. The court also found that the mother had frequently instituted or conducted vexatious proceedings in relation to parenting issues, leading to the making of a vexatious proceedings order against her under section 102QB. Furthermore, the mother's conduct and her complete lack of success in her applications justified an order for her to pay the father's costs on a party-party basis.

The court ordered that the mother be restrained from instituting further proceedings for parenting orders without leave of the Court, and that she pay the father's costs. The orders also addressed the property settlement between the parties, including provisions for the refinance and transfer of real property, or its sale if the refinance did not occur by a specified date.

Orders

Orders of the court

DGC 672 of 2014

BETWEEN:

MS BENDON

Applicant

AND:

MR BENDON

Respondent

ORDER MADE BY:

MCEVOY J

DATE OF ORDER:

7 JUNE 2021

BY CONSENT IT IS ORDERED THAT:

1. The husband have 60 days from the date hereof to forthwith effect a refinance and transfer of the real property at GG Street, I Town in the State of Western Australia.

2. In the event that the transfer and/or sale occurs by way of HH Company [property settlement] transaction, then the husband be appointed as the wife’s attorney for the purposes of the completion of any documents so as to give effect to the HH Company transaction.

3. The husband and the wife each do all things and sign all documents so as to discharge the mortgage loan with Bank West as may be required and all documents as may be required so as to effect a transfer of the real property into the name of the husband.

4. In the event that the husband has not effected the transfer and refinance into his own name by 7 August 2021, then the following occur:

(a) the husband and the wife do all things and sign all documents to place the real property at GG Street, I Town, Western Australia on the market for sale;

(b) the selling agent and the sale price be as agreed, but if there is no agreement then as nominated by the President of the Real Estate Institute of Western Australia;

(c) the conveyancer for the sale be as agreed between the husband and the wife but if there is no agreement, then as nominated by the President of the Law Society of Western Australia; and

(d) the terms and conditions of sale and the sale price be as agreed but if there is no agreement, then as nominated by the appointed selling agent.

5. Upon a sale being achieved, the proceeds of sale be disbursed as follows:

(a) in payment of all costs, commissions and expenses of sale;

(b) to discharge the mortgage and any other encumbrance affecting the real property; and

6. Liberty to apply be reserved to the parties concerning the terms and conditions of sale.

7. Pursuant to section 106A of the Family Law Act 1975 (Cth) (‘the Act’) a Registrar of the Family Court of Australia be requested to sign any and all documents required to be signed by the wife and/or husband so as to give effect to the discharge of mortgage and/or sale and/or transfer.

THE COURT ORDERS THAT:

8. The mother’s Initiating Application filed 3 October 2018 and Application in a Case filed 9 July 2019 be otherwise dismissed.

9. Pursuant to section 102QB(2) of the Act the mother be restrained from instituting proceedings for parenting orders under the Act in a court having jurisdiction under the Act in relation to the three children of the marriage, unless leave of this Court is first obtained.

10. The mother pay the father’s costs, on a party-party basis, of and incidental to her applications of 3 October 2018 and 9 July 2019 insofar as they seek a variation of the existing parenting orders.

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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).

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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File number(s):	DGC 672 of 2014
Judgment of:	MCEVOY J
Date of judgment:	7 June 2021
Catchwords:	FAMILY LAW – CHILDREN – Rice & Asplund threshold hearing – previous final parenting orders were made in 2015 and 2017 – Whether the mother’s application to re-open proceedings and to have new parenting orders made should be struck out – Where the mother submits that her application should not be regarded as a Rice & Asplund application as the existing 2017 orders varied the 2015 orders and were not made following a final hearing on the merits – Where the mother submits that her application should not be struck out and says the fresh evidence before the Court demonstrating a change of circumstances is primarily that the children are older since the last orders were made and that the Court should infer that the limited contact between the children and the mother has been going well – Where the father submits that the mother’s application is entirely hopeless, not supported by probative evidence, and that none of the material produced by the mother amounts to changed facts and circumstances or fresh evidence –Where it is found that the mother is required to meet the threshold test and that she has failed to provide any evidence that there had been a material change in circumstances pursuant to the principles in Rice & Asplund – Application dismissed. FAMILY LAW – PRACTICE AND PROCEDURE – Vexatious proceedings order – Where the father seeks a vexatious proceedings order against the mother under s102QB of the Family Law Act 1975 (Cth) – Where the mother has initiated most of but has not been successful in any of the litigation between the parties which has been on-going since 2014 – Where it is found that the mother has frequently instituted or conducted vexatious proceedings in relation to parenting issues – Order made against the mother pursuant to s 102QB. FAMILY LAW – COSTS – Circumstances justifying order – Where father seeks costs against mother – Where it is found the mother’s conduct and that she has been wholly unsuccessful in relation to her applications for increasing time with the children justify the making of a costs order against the mother on a party/party basis.
Legislation:	Family Law Act 1975 (Cth) s 102QB, 117
Cases cited:	Cardus & Lavrick [2020] FamCA 579 Defrey & Radnor [2021] FamCAFC 67 Rice & Asplund (1979) FLC 90-725 SBS & PLS (2008) FLC 93-365
Number of paragraphs:	26
Date of hearing:	7 June 2021
Place:	Melbourne
Counsel for the Applicant	Mr Levine
Solicitor for the Applicant	Mr McMonnies
Solicitor for the Respondent	Ms McGregor

DGC 672 of 2014
BETWEEN:	MS BENDON Applicant
AND:	MR BENDON Respondent

ORDER MADE BY:	MCEVOY J
DATE OF ORDER:	7 JUNE 2021