DREWRY & FIRE - [2015] FamCA 308

FAMILY COURT OF AUSTRALIA

DREWRY & FIRE

[2015] FamCA 308

FAMILY LAW – PRACTICE & PROCEDURE – Application to reopen – Rice & Asplund (1979) FLC 90-725 considered – where final orders have been made – where the mother seeks to reopen parenting proceedings approximately two months after final orders were made – no significant change of circumstance shown to justify reopening – application to reopen dismissed

FAMILY LAW – PRACTICE & PROCEDURE – Application by the father to declare the mother a vexatious litigant pursuant to s 102QB of the Family Law Act 1975 (Cth) – where the mother has filed applications to reopen parenting proceedings without justification shortly after final orders were made on two separate occasions – where the proceedings have a long history – final orders made prohibiting the mother from instituting parenting proceedings without first obtaining leave of the court

Family Law Act 1975 (Cth) s 102Q, 102QB
Family Law Rules 2004 (Cth)

Attorney-General v Altaranesi [2013] NSWSC 63
Cannon & Acres [2014] FamCA 104
Freeman & Freeman (1987) FLC 91-857; (1986) 11 Fam LR 293
Marsden & Winch [2009] FamCAFC 152; (2009) 42 Fam LR 1
Rice & Asplund (1979) FLC 90-725; (1978) 6 Fam LR 570

APPLICANT:

Ms Drewry

RESPONDENT:

Mr Fire

FILE NUMBER:

MLC

12680

2007

DATE DELIVERED:

30 April 2015

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Johns J

HEARING DATE:

20 March 2015

REPRESENTATION

THE APPLICANT:

In person

THE RESPONDENT:

In person

Orders

That the mother’s Application in a Case filed 17 March 2015 and Initiating Application filed 24 February 2015 be dismissed.
That pursuant to s 102QB(2)(b) of the Family Law Act 1975 (Cth) (“the Act”) the applicant, Ms Drewry, be prohibited from instituting parenting proceedings with respect to B born … 2003, C born … 2005 and D born … 2006 (“the children”) under the Act in any court having jurisdiction under the Act without first having been granted leave to commence that proceeding pursuant to s 102QE of the Act, save that this vexatious proceeding order does not apply to:
(a)Any costs application of the mother arising from these orders filed prescribed under the Family Law Rules 2004 (Cth); or
(b)Any appeal from these orders, provided such appeal is filed within the time prescribed under the Family Law Rules 2004 (Cth) or such other time as is permitted by order of the Full Court.
That the father’s Response to Initiating Application filed 18 March 2015 and Response to Application in a Case filed 19 March 2015 be dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Drewry & Fire has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 12680 of 2007

Ms Drewry

Applicant

And

Mr Fire

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

On 15 December 2014 I published my Reasons for Judgment in relation to parenting proceedings conducted before…

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 DREWRY & FIRE

Details

AGLC: DREWRY & FIRE [2015] FamCA 308
Case: [2015] FamCA 308
Decision Date: 30 April 2015

CaseChat Overview and Summary

In the matter of *Drewry & Fire*, Johns J of the Family Court of Australia considered applications made by the mother, Ms Drewry, concerning parenting proceedings for three children. The father’s responses to these applications were also before the court.

The primary legal issue before the court was whether Ms Drewry should be prohibited from instituting further parenting proceedings concerning the children under the *Family Law Act 1975* (Cth). This question arose in circumstances where the court was considering dismissing Ms Drewry's existing applications.

Johns J reasoned that the repeated institution of proceedings by Ms Drewry constituted vexatious litigation. Applying section 102QB(2)(b) of the *Family Law Act 1975* (Cth), His Honour determined that it was appropriate to make an order prohibiting Ms Drewry from commencing further parenting proceedings without first obtaining leave of the court under section 102QE of the Act. This prohibition was subject to specific exceptions for costs applications and appeals.

Consequently, the mother’s applications were dismissed. The father’s responses were also dismissed. Crucially, Ms Drewry was prohibited from instituting further parenting proceedings concerning the children without leave, except in relation to costs applications arising from the orders or any appeal from these orders.

Orders

Orders of the court

That the mother’s Application in a Case filed 17 March 2015 and Initiating Application filed 24 February 2015 be dismissed.

That pursuant to s 102QB(2)(b) of the Family Law Act 1975 (Cth) (“the Act”) the applicant, Ms Drewry, be prohibited from instituting parenting proceedings with respect to B born … 2003, C born … 2005 and D born … 2006 (“the children”) under the Act in any court having jurisdiction under the Act without first having been granted leave to commence that proceeding pursuant to s 102QE of the Act, save that this vexatious proceeding order does not apply to:

(a) Any costs application of the mother arising from these orders filed prescribed under the Family Law Rules 2004 (Cth); or

(b) Any appeal from these orders, provided such appeal is filed within the time prescribed under the Family Law Rules 2004 (Cth) or such other time as is permitted by order of the Full Court.

That the father’s Response to Initiating Application filed 18 March 2015 and Response to Application in a Case filed 19 March 2015 be dismissed.

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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