FAMILY LAW – parenting orders – where final parenting orders made in September 2019 – where matter was partially remitted for rehearing by the Full Court – where final parenting orders made in June 2021 – where father files new application in July 2021 seeking variation of final orders of September 2019 and June 2021 – where mother seeks summary dismissal – where mother seeks for the father to be prohibited from filing further applications pursuant to s 64B(2)(g) or in the alternate the father declared a vexatious litigant pursuant to s 102QB of the Family Law Act 1975 (Cth) – father’s application dismissed – father prohibited from filing further applications without leave of the Court
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:
MR GIORDANO
Applicant
AND:
MS STONE
Respondent
ORDER MADE BY:
DEPUTY CHIEF JUDGE MCCLELLAND
DATE OF ORDER:
31 MARCH 2022
THE COURT ORDERS THAT:
1.Pursuant to s 45A of the Family Law Act 1975 (Cth) (“the Act”), the application filed by the applicant, MR GIORDANO, on 6 July 2021 be dismissed.
2.Pursuant to s 64B(2)(g) of the Act, the applicant father be prohibited from instituting further proceedings in relation to the child X, born in 2013, without first obtaining leave of the Court.
3.In the event…
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.
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Details
AGLC
Giordano & Stone [2022] FedCFamC2F 398
Case
[2022] FedCFamC2F 398
Decision Date
CaseChat Overview and Summary
This case concerned an application by the father, Mr Giordano, to vary existing final parenting orders made by the Court in respect of the child, X. The final parenting orders were made by Judge Dunkley on 13 September 2019. They were subsequently partially varied by Judge Howe on 4 June 2021. The mother, Ms Stone, sought to have the father’s application dismissed and for the father to be restrained from filing further proceedings in respect of the child without leave of the Court. The Court found that the father’s application had no reasonable prospects of success and should be dismissed pursuant to s 45A of the Family Law Act 1975 (Cth). The Court further found that the father should be restrained from filing further proceedings in respect of the child without leave of the Court. The Court rejected the mother’s application to have the father declared a vexatious litigant.