Grant & Aiden (No 2) - [2018] FamCA 304

FAMILY COURT OF AUSTRALIA

GRANT & AIDEN (NO. 2)

[2018] FamCA 304

FAMILY LAW – PRACTICE AND PROCEDURE – Application by the father for a vexatious proceedings order pursuant to s 102QB of the Family Law Act 1975 (Cth) – where the mother has frequently instituted vexatious proceedings in this Court and other courts and tribunals – where the proceedings have a long history – final orders made prohibiting the mother from instituting proceedings without first being granted leave

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)

Cannon & Acres [2014] FamCA 104
Marsden & Winch (2013) FLC 93-560
Pencious & Searle [2017] FamCAFC 210
Potier v A-G(NSW) (2015) 89 NSWLR 284
Official Trustee in Bankruptcy v Gargan (No 2) [2009] FCA 398
Viavattene v Attorney-General (NSW) [2015] NSWCA 44

APPLICANT:

Mr Grant

RESPONDENT:

Ms Aiden

INDEPENDENT CHILDREN’S LAWYER:

McKean Park Lawyers

FILE NUMBER:

MLC

5094

2008

DATE DELIVERED:

10 May 2018

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Macmillan J

HEARING DATE:

15 November 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Marchetti

SOLICITOR FOR THE APPLICANT:

Trapski Family Law

THE RESPONDENT:

In person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Colla

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

McKean Park Lawyers

Orders

IT IS ORDERED THAT

Pursuant to s 102QB(2)(b) of the Family Law Act 1975 (Cth) (“the Act”) the respondent mother Ms Aiden, be prohibited from instituting proceedings with respect to the child V, born … 2006, and/or the applicant father, Mr Grant, 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.
The father’s oral application for a vexatious proceedings order be otherwise dismissed and removed from the list of cases awaiting hearing.

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 Grant & Aiden 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 MELBOURNE

FILE NUMBER: MLC 5094 of 2008

Mr Grant

Applicant

And

Ms Aiden

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

This is a matter in which there has been a lengthy history of litigation. The final hearing before me proceeded over 11 days commencing in March 2017 and concluding in November 2017. It concerned the parenting arrangements for the child of the marriage who is now 11 years of age in circumstances where the parties had been separated for over 10 years. During the proceedings and the hearing itself the mother made many unsuccessful applications,…

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 Grant & Aiden (No 2)

Details

AGLC: Grant & Aiden (No 2) [2018] FamCA 304
Case: [2018] FamCA 304
Decision Date: 10 May 2018

CaseChat Overview and Summary

In *Grant & Aiden (No 2)*, the applicant father, Mr Grant, sought orders against the respondent mother, Ms Aiden, concerning their child, V. The primary dispute revolved around the father's application for an order prohibiting the mother from instituting further proceedings under the *Family Law Act 1975* (Cth) without leave.

The central legal issue before Macmillan J was whether to grant the father's application to prohibit the mother from commencing future proceedings under the Act concerning the child V or the father. This involved considering the threshold for making such a prohibitory order and whether the mother's conduct warranted such a restriction.

Macmillan J reasoned that the mother's repeated institution of proceedings, which had been dismissed, demonstrated a pattern of vexatious litigation. Applying the principles governing vexatious proceedings orders under the *Family Law Act*, the court found that the mother's actions were likely to be repeated and were an abuse of process. Consequently, the court made an order prohibiting the mother from instituting proceedings under the Act concerning V or the father without first obtaining leave pursuant to s 102QE of the Act. The father's oral application for a vexatious proceedings order was otherwise dismissed.

Orders

Orders of the court

IT IS ORDERED THAT

Pursuant to s 102QB(2)(b) of the Family Law Act 1975 (Cth) (“the Act”) the respondent mother Ms Aiden, be prohibited from instituting proceedings with respect to the child V, born … 2006, and/or the applicant father, Mr Grant, 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.

The father’s oral application for a vexatious proceedings order be otherwise dismissed and removed from the list of cases awaiting hearing.

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

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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