Benson & Drury - [2022] FedCFamC1F 1041

Federal Circuit and Family Court of Australia
(DIVISION 1)
Benson & Drury [2022] FedCFamC1F 1041

File number(s): MLC 8683 of 2022

Judgment of: BERMAN J

Date of judgment: 22 December 2022

Catchwords: FAMILY LAW – PRACTICE & PROCEDURE – Vexatious proceedings – Where there has been ongoing litigation since October 2015 – Where final orders were made in 2017 – Where the final orders have not diminished the father’s enthusiasm for litigation – Where the children are 17 and 14 years old – Where the amendments sought by the father to the final orders do not effectively change the orders – Where the litigation has been deleterious to the psychological, emotional and physical health of the children – Where the father recognises that the ongoing proceedings may well be a cause of the children’s struggle with mental health – Where the mother seeks vexatious proceedings orders – Consideration of s 102QB – Orders.

Legislation:
Family Law Act 1975 (Cth) ss 102Q(1), 102QB(2), 102QB(4), 102QB(6), s 102QE

Federal Court of Australia Act 1976 (Cth) 37AO

Access to Justice (Federal jurisdiction) Amendment Act 2012

Cases cited:
Attorney General in and for the State of NSW v Gargan [2010] NSWSC 1192

Attorney-General v Wentworth (1988) 14 NSWLR 481

Benson & Drury [2019] FCCA 3472

Cannon & Acres [2014] FamCA 104

Carriel & Lendrum [2015] FLC 93-640

Drury & Benson (No 2) [2020] FCCA 250

Drury & Benson [2021] FCCA 1859

Fuller v Toms [2015] 234 FCR 535

Marsden & Winch (2013) FLC 93-560

Marsden & Winch [2009] 42 Fam LR 1

Official Trustee in Bankruptcy v Gargan(No 2) [2009] FCA 398

Rice & Asplund (1979) FLC 90-725

Division: Division 1 First Instance

Number of paragraphs: 98

Date of hearing: 28 November 2022

Place: Adelaide

Counsel for the Applicant: The applicant appearing self-represented

Counsel for the Respondent: Ms Lewis

Solicitor for the Respondent: D’Angelo Lawyers
ORDERS

MLC 8683 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MR BENSON

Applicant

AND:
MS DRURY

Respondent

order made by:

BERMAN J

DATE OF ORDER:

22 december 2022

THE COURT ORDERS THAT:
1.Pursuant to s 102QB of the Family Law Act 1975 (Cth) (“the Act”), Mr Benson is prohibited from instituting further parenting proceedings under the Act in relation to B born 2005 and C born 2008 (“the children”) without first having been granted leave to commence those proceedings pursuant to s 102QD of the Act, provided that the father does not require leave to file a Contravention Application in respect of Orders made 9 August 2017.
2.The Amended Initiating Application filed 12 October 2022 be dismissed.

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…

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 Benson & Drury

Details

AGLC: Benson & Drury [2022] FedCFamC1F 1041
Case: [2022] FedCFamC1F 1041
Decision Date

CaseChat Overview and Summary

In the matter of Benson & Drury, the father initiated proceedings in relation to the parenting of his two children, B and C, after the family relocated to Melbourne. The father’s application focused on the impact of the relocation on B, who he claimed had experienced significant psychological distress, and his desire to increase his time with both children. The mother opposed the application, arguing that the father’s claims were part of a broader history of vexatious litigation. The court was required to determine whether there had been a significant change of circumstances warranting a reassessment of the children’s best interests and whether the father’s application should proceed.

The central legal issue was whether the father had demonstrated a significant change of circumstances that warranted a departure from the existing parenting orders. The court needed to assess the father's allegations regarding the children's well-being and the impact of the relocation, as well as the mother's contention that the father's litigation was vexatious. The court also had to consider the children's best interests in light of their current relationships with both parents.

In determining the matter, the court found that the father's claims of significant changes in circumstances were not substantiated. The father had not provided sufficient evidence to support his assertions about B’s psychological state or to demonstrate that the existing arrangements were detrimental to the children's welfare. The court also noted the mother's argument that the father's proceedings were part of a pattern of vexatious litigation, which the mother had supported with reference to a previous judgment. Based on these findings, the court dismissed the father’s application.

The court made orders dismissing the father's initiating application and directed that the costs of the application be paid by the father. The court emphasized that the existing parenting arrangements should remain in place unless further evidence of a significant change of circumstances was presented.

Orders

Orders of the court

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Background

Background to the litigation

It is conceded by the father that his proceedings have no utility in respect of B, given he is 17 years of age, and that it is also a relevant consideration that C is now 14 years of age.Background The father contends that following the children’s relocation to Melbourne, B suffered from anxiety and depression which resulted in him withdrawing from school, extra-curricular activities and the ability to associate with acquaintances and friends for the majority of 2019 and 2020. His return to school, according to the father, has been interrupted by sleep difficulties, migraine headaches and on occasion it is alleged that B has engaged in self-harm activities. The father complains that from mid-2019, B would not spend time with him despite the father’s best endeavours. The father concedes now that B is troubled, anxious and feels exhausted. From 2021, there has been some better communication between B and his father and whilst he has spent some time with the father over weekends, he has not stayed overnight. The father’s belief is that the mother has either actively prevented B from spending time with him or refuses to support his relationship with B. The father’s relationship with C was considered by him to be qualitatively better than his relationship with B although from early 2020, the father’s history is that communication and ultimately time spent with C, was episodic and irregular. At present, C does not spend time with the father and has had no contact with his paternal grandparents. The father’s concern is heightened by what he considers is a lack of communication by the mother in respect of the children’s psychological and mental health management. The father states that in early 2021, he relocated to Melbourne to enable him to spend more extensive time with the children pursuant to his interpretation of paragraph 13 of the final orders namely, that if he was living in Melbourne then he would see the children each alternate weekend, overnight in the intervening week and half of the school holidays. The mother does not accept that the father has relocated to Melbourne given her understanding that the father’s current partner lives in Adelaide with her children. The father acknowledges that his partner’s children consider him to fulfil a parenting role. There is some uncertainty as to the father’s precise living arrangements however, to some degree, whatever should regulate the future parenting arrangements, it is moot point given that neither of the children, but in particular C, spends time with the father. The mother relies upon her affidavit sealed on 8 September 2022 in support of her Response seeking to dismiss the father’s Initiating Application and more generally the current proceedings. The mother considers that the father’s proceedings are but one part in a long history of vexatious litigation undertaken by the father. She refers to the judgment of Kari J in Benson & Drury [2019] FCCA 3472 where her Honour considered the threshold principle in Rice & Asplund (1979) FLC 90-725 (“Rice & Asplund”) and found that there had not been a significant change of circumstances but even if there had been, the children’s best interests would not be served by ongoing litigation.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

BERMAN J

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Ratio Decidendi

Legal Principle Established

Established by: BERMAN J

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File number(s):	MLC 8683 of 2022
Judgment of:	BERMAN J
Date of judgment:	22 December 2022
Catchwords:	FAMILY LAW – PRACTICE & PROCEDURE – Vexatious proceedings – Where there has been ongoing litigation since October 2015 – Where final orders were made in 2017 – Where the final orders have not diminished the father’s enthusiasm for litigation – Where the children are 17 and 14 years old – Where the amendments sought by the father to the final orders do not effectively change the orders – Where the litigation has been deleterious to the psychological, emotional and physical health of the children – Where the father recognises that the ongoing proceedings may well be a cause of the children’s struggle with mental health – Where the mother seeks vexatious proceedings orders – Consideration of s 102QB – Orders.
Legislation:	Family Law Act 1975 (Cth) ss 102Q(1), 102QB(2), 102QB(4), 102QB(6), s 102QE Federal Court of Australia Act 1976 (Cth) 37AO Access to Justice (Federal jurisdiction) Amendment Act 2012
Cases cited:	Attorney General in and for the State of NSW v Gargan [2010] NSWSC 1192 Attorney-General v Wentworth (1988) 14 NSWLR 481 Benson & Drury [2019] FCCA 3472 Cannon & Acres [2014] FamCA 104 Carriel & Lendrum [2015] FLC 93-640 Drury & Benson (No 2) [2020] FCCA 250 Drury & Benson [2021] FCCA 1859 Fuller v Toms [2015] 234 FCR 535 Marsden & Winch (2013) FLC 93-560 Marsden & Winch [2009] 42 Fam LR 1 Official Trustee in Bankruptcy v Gargan(No 2) [2009] FCA 398 Rice & Asplund (1979) FLC 90-725
Division:	Division 1 First Instance
Number of paragraphs:	98
Date of hearing:	28 November 2022
Place:	Adelaide
Counsel for the Applicant:	The applicant appearing self-represented
Counsel for the Respondent:	Ms Lewis
Solicitor for the Respondent:	D’Angelo Lawyers

MLC 8683 of 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MR BENSON Applicant
AND:	MS DRURY Respondent

order made by:	BERMAN J
DATE OF ORDER:	22 december 2022