Finch - [2017] FamCA 201

FAMILY COURT OF AUSTRALIA

FINCH

[2017] FamCA 201

FAMILY LAW – PRACTICE AND PROCEDURE – Where the applicant father is subject to a s 102Q vexatious proceedings order – Where an application is made for leave to file an Initiating Application for parenting matters – Where the requirements of s 102QE have not been met – Where the matters raised by the father are not new issues – Application for leave dismissed.

Family Law Act 1975 (Cth) s 102Q, 102QE
Family Law Rules 2004 (Cth) r 11.05

Acres & Cannon No.3 [2016] FamCA 795 Cannon & Acres [2014] FamCA 104 Gallo v Attorney-General (unreported, Supreme Court of Victoria, Starke J, 4 September 1984) Vlug & Poulos (1997) FLC 92-778
APPLICANT:	Mr Finch
FILE NUMBER:	BRC	2788	of	2009

DATE DELIVERED:

27 March 2017

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Berman J

HEARING DATE:

27 March 2017

REPRESENTATION

THE APPLICANT:

The applicant appearing in person by telephone

Orders

IT IS ORDERED:

That the Application in a Case filed 27 January 2017 be dismissed.
That leave is not granted to the father to file an Initiating Application.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth)..

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 2788 of 2009

Mr Finch

Applicant

EX TEMPORE

REASONS FOR JUDGMENT

Mr Finch is the father of K, born in 2007 (“the child”). On 22 November 2011, consent orders were made which provided for the parenting arrangements in respect of the child. In short summary, the child was to live with the mother and spend significant and substantial time with the father. The parties were represented by counsel at the commencement of the proceedings and in respect of the consent orders made. The Court was assisted by an Independent Children’s Lawyer (“ICL”).
The father sought to change the orders by an Amended Initiating Application filed 13 August 2012. That application was dismissed, and, on 7 March 2013, orders were made which restrained the father from commencing further proceedings without leave. The father was granted leave to file a fresh initiating application in 2014, upon the condition that the proceedings deal with a narrow compass of issues, namely, the location of handovers, telephone communication and an issue in respect of overseas travel. An ICL was appointed to the proceedings and a trial was heard in 2015.
That hearing was conducted by Forrest J and orders were made which discharged the previous parenting orders and replaced them with…

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 Finch

Details

AGLC: Finch [2017] FamCA 201
Case: [2017] FamCA 201
Decision Date: 27 March 2017

CaseChat Overview and Summary

In the matter of *Finch*, Berman J of the Federal Circuit Court of Australia considered an application filed by the father concerning parenting orders. The specific nature of the dispute, beyond its relation to parenting arrangements, is not detailed in the provided text.

The primary legal issue before the court was whether to grant the father leave to file an Initiating Application. This suggests the court was assessing whether the father met the necessary threshold or demonstrated sufficient grounds to commence new proceedings or seek a significant alteration of existing orders.

Berman J determined that leave should not be granted to the father to file an Initiating Application. Consequently, the application filed on 27 January 2017 was dismissed. The court's reasoning for refusing leave is not elaborated upon in the provided extract.

Orders

Orders of the court

IT IS ORDERED:

That the Application in a Case filed 27 January 2017 be dismissed.

That leave is not granted to the father to file an Initiating Application.

Note: The form of the order is subject to the entry of the order in the Court’s records.

Background

Background to the litigation

Full text does not contain this section.

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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