Darwin and Darwin

[2008] FamCA 588

FAMILY COURT OF AUSTRALIA

DARWIN & DARWIN [2008] FamCA 588

FAMILY LAW – PRACTICE AND RPOCEDURE – Reopening of case – Whether previous application vexatious or withdrawn

APPLICANT: MR DARWIN

RESPONDENT: MS DARWIN

FILE NUMBER: NCC 2444 of 2007

DATE DELIVERED: 23 July 2008

PLACE DELIVERED: Sydney

PLACE HEARD: Newcastle

JUDGMENT OF: JUSTICE MULLANE

HEARING DATE: 4 July 2008

REPRESENTATION

THE APPLICANT: No appearance

SOLICITOR FOR THE RESPONDENT: Ms Z. Kekeff, Kekeff & Associates

INDEPENDENT CHILDREN’S LAWYER: Mr Rod Powe

Orders

1. The mother has until 4pm on 13 August 2008 to make a written request to the Registry Manager to list her Amended Response of 3 December 2007 for a further 1 hour undefended hearing before Justice Cohen in respect of her application under Section 118 of the Family Law Act.

2. In default of any such written request in the time permitted, the mother’s Amended Response of 3 December 2007 will be deemed to be withdrawn and is by this order dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Darwin & Darwin is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER:  NCC2444 of 2007.

MR DARWIN 

Applicant

And

MS DARWIN

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

1. This was listed before me as an undefended hearing of the mother’s Response seeking dismissal of the father’s application for parenting orders, including an order for him to spend time with the parties’ only child, aged 5.

2. It was also listed before me as an undefended hearing of the mother’s Response so far as it seeks Orders under Sec 118 of the Family Law Act for the father to be restrained for 5 years from filing any further parenting applications and thereafter from filing any such application except by permission of the court.

THE EVIDENCE

1. The evidence consisted of:

   Transcript of Proceedings before Justice Cohen on 26 May 2008;

   Court Orders Sheets of 26 May 2008;

   Application of Father filed 1 June 2006;

   Amended Application of Father filed 20 July 2006;

   Amended Application of Father filed 22 January 2008;

   Amended Response of Mother filed 3 December 2007;

   Affidavit of Mother sworn 1 August 2006;

   Affidavit of Mr F sworn 6 November 2006;

   Affidavit of Mother sworn 8 November 2006;

   Single Expert Report by Dr R;

   Affidavit of Mother sworn 4 December 2007.

RELEVANT LAW

1. Although there other provisions that might have been relied upon, the mother specifically relies upon Section 118 of the Family Law Act which provides:

   Frivolous or vexatious proceedings

   (1) The court may, at any stage of proceedings under this Act, if it is satisfied that the proceedings are frivolous or vexatious:

   (a)      dismiss the proceedings;

   (b)      make such order as to costs as the court considers just; and

   (c) if the court considers appropriate, on the application of a party to the proceedings--order that the person who instituted the proceedings shall not, without leave of a court having jurisdiction under this Act, institute proceedings under…