FINCH & SHIBO - [2013] FamCA 136

FAMILY COURT OF AUSTRALIA

FINCH & SHIBO

[2013] FamCA 136

FAMILY LAW – ORDERS – Variation – Where the father provides no grounds for a variation of consent orders

FAMILY LAW – VEXATIOUS PROCEEDINGS – Order requiring party to obtain leave of the court before instituting fresh proceedings

FAMILY LAW – PRACTICE AND PROCEDURE – Parties – Vexatious litigant

Family Law Act 1975 (Cth) s 118

Bemert and Swallow [2009] FamCA 5
Rice v Asplund (1979) FLC 90-725
SPS and PLS (2008) FLC 93-363

APPLICANT:

Mr Finch

RESPONDENT:

Ms Shibo

FILE NUMBER:

BRC

2788

2009

DATE DELIVERED:

7 March 2013

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Forrest J

HEARING DATE:

26 September 2012

REPRESENTATION

FOR THE APPLICANT:

Mr Finch in Person

COUNSEL FOR THE RESPONDENT:

Ms Walker-Munro

SOLICITOR FOR THE RESPONDENT:

Legal Aid Queensland

Orders

The Amended Initiating Application filed by the father on 13 August 2012 is dismissed.
The father, Mr Finch, must not without the leave of a Court having jurisdiction under the Family Law Act 1975 commence any proceedings seeking orders pursuant to Part VII of the Family Law Act 1975 in any court, either State or Federal, in respect of the child, K, who was born on … September 2007.
Any application the father files in which he seeks leave to commence any proceedings pursuant to Part VII of the Family Law Act 1975 shall not be served on the mother of the said child and shall be heard, at first instance, on an ex-parte basis.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Finch & Shibo 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 BRISBANE

FILE NUMBER: BRC 2788 of 2009

Mr Finch

Applicant

And

Ms Shibo

Respondent

REASONS FOR JUDGMENT

On 22 November 2011, I made orders in proceedings between these two parents and an Independent Children’s Lawyer finalising parenting proceedings in respect of the child, K, who was born in September 2007. The proceedings up to the point of trial had been difficult and protracted, principally because the father did not have legal representation and, as the father makes out in his own case, because he suffers from various mental health issues.
However, through a scheme offered by the Bar Association of Queensland, the father was represented at the time of trial by counsel who appeared on a pro bono basis. No doubt, through the good endeavours of that barrister and the barristers and solicitors who represented the mother and the ICL, the matter was able to be resolved by agreement reached between all three parties. Very comprehensive orders were made by me with the parties’ consent. The terms of those orders had been signed by the parties and presented to the Court. They all asked the Court to make these terms into orders regulating parenting matters between them.
Those orders provided for the parties’ little girl to…

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 & SHIBO

Details

AGLC: FINCH & SHIBO [2013] FamCA 136
Case: [2013] FamCA 136
Decision Date

CaseChat Overview and Summary

The Family Court of Australia considered an application by Mr Finch (the father) to vary consent orders made in November 2011 concerning parenting arrangements for the child K. Ms Shibo (the mother) opposed the application and sought orders that the father be restrained from commencing further proceedings without leave of the court.

The primary legal issues before the court were whether the father had demonstrated a significant change in circumstances justifying a variation of the existing consent orders, and whether his application was frivolous or vexatious, warranting an order under section 118 of the *Family Law Act 1975* (Cth) requiring him to obtain leave before commencing future proceedings. The court also considered the paramountcy of the child's best interests and the need to protect the mother from further harassment.

Justice Forrest dismissed the father's application, finding that he had failed to persuade the court that a variation of the orders was in the child's best interests. The court found that the father had not demonstrated a significant change in circumstances since the consent orders were made, and that his evidence regarding his alleged incapacity to comply with the existing transition arrangements was not credible. Furthermore, the court noted that the proposed alternative transition locations were unavailable or unsuitable, and that the existing arrangements were necessary to shield the child from the risk of violence and abuse due to the history of domestic violence between the parents. The court concluded that the father's application was frivolous and vexatious, having no reasonable prospect of success and serving only to cause annoyance.

Consequently, the court ordered that the father must not commence any proceedings seeking orders under Part VII of the *Family Law Act 1975* in any court without first obtaining the leave of a court having jurisdiction. Any application for leave was to be heard ex-parte and not served on the mother.

Orders