FIELD & MIGHELL

[2015] FCCA 2806

FEDERAL CIRCUIT COURT OF AUSTRALIA

FIELD & MIGHELL [2015] FCCA 2806

Catchwords:
FAMILY LAW – PRACTICE AND PROCEDURE – Application to vary orders – consideration of power to do so – functus officio – power of the court to dismiss for abuse of process – vexatious litigant and procedural orders.

Legislation:

Federal Circuit Court of Australia Act 1999, s.17A

Applicant: MS FIELD

Respondent: MR MIGHELL

File Number: MLC 1145 of 2010

Judgment of: Judge Burchardt

Hearing date: 28 September 2015

Date of Last Submission: 28 September 2015

Delivered at: Melbourne

Delivered on: 28 September 2015

REPRESENTATION

The Applicant: In person

The Respondent: In person

ORDERS

1. The matter be adjourned to this Court for final hearing before Judge Burchardt on 8 June 2016 at 10.00 am, with an estimated hearing time of 1 day. 

2. The party responsible for the payment of any fee including a setting down or hearing fee pay or cause to be paid such of the Fees as shall be payable by that party in accordance with, and within the time specified in, the Federal Circuit Court Regulations 2000.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 1145 of 2010

MS FIELD

Applicant

And

MR MIGHELL

Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

1. This is an application to change, in effect, orders that I made as long ago as 2011.  As the Full Court decision pointed out, those orders were made final, so the first issue is whether I am functus officio and have any power to entertain an application at all.  That’s the first matter you will need to address.

2. The second matter you will need to turn your minds to is the fact that as a matter of preliminary impression, the application seeks to retry issues I have already determined anyway, so even if I was not functus officio, I would not be minded to reopen some of those issues, and by way of illustration, I refer to the endeavour to involve Mr Mighell’s mother as a party.  My recollection – and I’m not saying I’m absolutely right – is that I was faced with such an application in the original proceeding and rejected it.  Now, I’m open to persuasion if I’m wrong, but that’s my recollection.  So there’s the question as to whether it’s permissible to re-embark upon an examination of those matters.

3. The third matter is whether I should dismiss either the application and/or the response, (which seeks a declaration that Ms Field be declared a vexatious litigant), pursuant to s 17A of the Federal Circuit Court of Australia Act 1999, which is a section of the Act that empowers the Court to dismiss a proceeding where there are no reasonable prospects of success.  That is a power the Court can exercise of its own motion, and I am minded to exercise it.

4. So those are the issues I’m going to give you an opportunity to be heard about.  I will cause the transcript of what I’ve just said to be taken out and sent to you so you’ve got a formal record of it, and that’s what I will want to hear about from you when we come back.

5. I would point out that I’m mindful of the terms of my judgments and those of the Court on appeal, which both parties should revisit, in my view.  You should both reread all of my rulings and the appeal decision in preparing yourself.

6. The earliest date I can give you for such a hearing, I’m sorry to say, is as far away as 8 June 2016. The government is not appointing any judges to replace the ones who have retired, and that is having an inexorable effect upon our listings. I will list the matter for hearing on that day for one day, and I want to hear your submissions about the issues I’ve mentioned to you, and I will cause the transcript of what I’ve said to be forwarded so you’re under no doubt as to exactly what I have said.

7. Every day is like this sort of day.  I’ve got four or five cases every day from now till then, save on public holidays or where I’m on leave.  We are three judges short in this registry at the moment, and that’s three out of 12, so inevitably, it’s taking longer and longer to get the cases heard.

8. Putting the matter rather broadly, and subject to my not remembering correctly, I think the outcome of the proceedings before was ultimately that all the matters to do with the child support case and the property in (country omitted) were essentially left to be resolved by the (country omitted) authorities, and that is why I won’t be making any interim orders.  I will hear you, obviously, about these matters next June.

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Judge Burchardt

Associate: 

Date:  13 October 2015