Haykal and Krawiec (No 2) - [2015] FamCA 266

FAMILY COURT OF AUSTRALIA

HAYKAL & KRAWIEC (NO 2)

[2015] FamCA 266

FAMILY LAW – PRACTICE AND PROCEDURE – Where an order was made refusing the husband’s application for leave to institute an application for spousal maintenance against the wife – Where the husband seeks a stay of that order – Application for stay dismissed

FAMILY LAW – VEXATIOUS PROCEEDING ORDER – Where the question arises as to whether or not a vexatious proceedings order pursuant to s 102Q should be made prohibiting the husband from instituting or conducting further proceedings against the wife in respect of financial matters under the Family Law Act 1975 (Cth), without leave – Whether the husband has instituted and conducted proceedings without reasonable cause and/or in a way to harass, annoy, or cause detriment to the wife – Where the husband has frequently instituted or conducted vexatious proceedings in Australian courts– Order made prohibiting the husband from commencing proceedings under the Act against the wife for financial matters, or any related proceedings

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

Agapis v Plumbers Licensing Board (No 2) [2014] FCA 1045
Attorney General in and for the State of NSW v Gargan [2010] NSW SC 1192
Cannon and Acres [2014] FamCA 104
Jackson & Balen [2009] FamCAFC 131

National Australia Bank Ltd v Freeman [2006] QSC 86

APPLICANT:

Mr Haykal

RESPONDENT:

Ms Krawiec

FILE NUMBER:

SYC

731

2009

DATE DELIVERED:

16 April 2015

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Watts J

HEARING DATE:

30 March 2015

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Litigant in person

SOLICITOR FOR THE RESPONDENT:

Litigant in person

Orders

The husband’s application filed 16 March 2015 is dismissed.
Pursuant to s 102QB(2)(b) Family Law Act 1975 (Cth), the husband be prohibited from instituting proceedings of a type referred to in paragraph (c) (maintenance of one of the parties) and (ca) (proceedings between the parties with respect to property of the parties) and other proceedings in relation to completed proceedings of a kind referred to in paragraphs (c) and (ca) of the definition of “matrimonial cause” in ss 4(1) of the Act.
It is noted that the effect of making order 2 is to require the husband to seek leave to institute any further proceedings in relation to financial matters between himself and his former wife (see s 102QD(1)(a) and s 102QE(2) of the Act) and the husband must not serve a copy of any application for leave and the supporting affidavit on the wife unless the court so orders (s 102QE(4) and s 102QG(1) of the Act).

IT IS NOTED that publication of this judgment by this Court under the pseudonym Haykal & Krawiec (No 2) 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 SYDNEY

FILE NUMBER: SYC 731 of 2009

Mr Haykal

Applicant

And

Ms Krawiec

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

The current hearing involved a consideration of the husband’s…

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

Case: [2015] FamCA 266
Decision Date: 16 April 2015

CaseChat Overview and Summary

In *Haykal and Krawiec (No 2)*, Watts J of the Family Court of Australia considered an application by the husband for a stay of a prior order that refused his application for leave to institute proceedings for spousal maintenance against the wife. The court also considered whether to make an order under s 102Q of the *Family Law Act 1975* (Cth) prohibiting the husband from instituting or conducting further proceedings against the wife in respect of financial matters without leave.

The primary legal issues before the court were whether the husband's prior conduct warranted the imposition of a vexatious proceedings order, and whether the husband had instituted and conducted proceedings without reasonable cause or in a manner intended to harass, annoy, or cause detriment to the wife. The court was also required to determine the husband's application for a stay of the order refusing leave for spousal maintenance.

His Honour found that the husband had a history of instituting and conducting vexatious proceedings in Australian courts. Applying the principles of s 102Q of the *Family Law Act 1975* (Cth), the court determined that the husband had indeed instituted and conducted proceedings without reasonable cause and in a way that was vexatious. Consequently, the court dismissed the husband's application for a stay of the prior order.

The court made orders prohibiting the husband from instituting proceedings under the *Family Law Act 1975* (Cth) concerning maintenance of a party or property of the parties, and any related proceedings in relation to completed proceedings of those kinds, without leave.

Orders

Orders of the court

The husband’s application filed 16 March 2015 is dismissed.

Pursuant to s 102QB(2)(b) Family Law Act 1975 (Cth), the husband be prohibited from instituting proceedings of a type referred to in paragraph (c) (maintenance of one of the parties) and (ca) (proceedings between the parties with respect to property of the parties) and other proceedings in relation to completed proceedings of a kind referred to in paragraphs (c) and (ca) of the definition of “matrimonial cause” in ss 4(1) of the Act.

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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