FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Conner & Elwyn [2022] FedCFamC1F 130
File number(s): CSC 129 of 2021 Judgment of: BAUMANN J Date of judgment: 21 March 2022 Catchwords: FAMILY LAW – PARENTING – Where final parenting Orders were made in 2015 – Consideration of Rice & Asplund principles – Where the Court finds there insufficient evidence of any change in circumstances – Application dismissed
FAMILY LAW – PRACTICE AND PROCEDURE – Where the father has filed and discontinued multiple applications over several years – Where, pursuant to s 102QB, the mother seeks the father be declared a vexatious litigation – Orders made prohibiting the father from further instituting proceedings without first having been granted leave to commence that proceeding pursuant to s 102QE
Legislation: Family Law Act 1975 (Cth) ss 102Q, 102QB, 102QE Cases cited: Garrety & Steyn (No. 2) [2021] FamCA 277
Rice & Asplund (1979) FLC 90-725
Conner &Elwyn [2015] FCCA 3642
Division: Division 1 First Instance Number of paragraphs: 30 Date of hearing: 28 October 2021 Place: Heard in H City, delivered in Brisbane Counsel for the Applicant: Litigant in person Counsel for the Respondent: Mr Raeburn ORDERS
CSC 129 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR CONNER
Applicant
AND: MS ELWYN
Respondent
ORDER MADE BY:
BAUMANN J
DATE OF ORDER:
21 MARCH 2022
THE COURT ORDERS:
1.That the father’s parenting Application filed 12 February 2021 is dismissed.
2.That the father, Mr Conner, is prohibited from instituting proceedings under the Family Law Act 1975 (Cth) (“the Act”) against the mother, Ms Elwyn, or in relation to the child, X born in 2010, without first having been granted leave to commence that proceeding pursuant to s 102QE of the Act.
3.That if the mother maintains her application for costs, then the following timetable for filing written submissions applies:
(a)The mother shall file and serve by 8 April 2022, written submissions dealing with both liability and quantum of costs sought;
(b)The father shall file and serve by 29 April 2022 any written submissions in response; and
(c)Unless otherwise ordered, the issue of costs shall be determined in chambers on the papers.
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 the pseudonym Conner &Elwyn has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS…
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CaseChat Overview and Summary
In assessing the change of circumstances, the court found that there was insufficient evidence to warrant a departure from the existing parenting orders made in 2015. The court also considered whether Mr Conner's repeated filings of applications, many of which were subsequently discontinued, constituted vexatious litigation under section 102QB of the Act. The court determined that Mr Conner's conduct met the criteria for being a vexatious litigant, and made orders prohibiting him from instituting further proceedings without first obtaining leave under section 102QE of the Act. The court also established a timetable for the filing of written submissions regarding costs if Ms Elwyn chose to maintain her application.
The court dismissed Mr Conner's parenting application, finding no sufficient change in circumstances to warrant reconsideration of the existing parenting orders. The court also made orders prohibiting Mr Conner from instituting further proceedings without leave, and established a timetable for the filing of written submissions on costs if Ms Elwyn pursued her application. These orders were made to prevent unnecessary and repetitive litigation, and to ensure that any future proceedings are justified and not vexatious in nature. The form of the orders was subject to entry in the Court's records.
Orders
Orders of the court
1. That the father’s parenting Application filed 12 February 2021 is dismissed.
2. That the father, Mr Conner, is prohibited from instituting proceedings under the Family Law Act 1975 (Cth) (“the Act”) against the mother, Ms Elwyn, or in relation to the child, X born in 2010, without first having been granted leave to commence that proceeding pursuant to s 102QE of the Act.
3. That if the mother maintains her application for costs, then the following timetable for filing written submissions applies:
(a) The mother shall file and serve by 8 April 2022, written submissions dealing with both liability and quantum of costs sought;
(b) The father shall file and serve by 29 April 2022 any written submissions in response; and
(c) Unless otherwise ordered, the issue of costs shall be determined in chambers on the papers.
Note: The form of the order is subject to the entry 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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