Herbert and Herbert (No 3) - [2020] FamCA 603

FAMILY COURT OF AUSTRALIA

HERBERT & HERBERT (NO. 3)

[2020] FamCA 603

FAMILY LAW – ORDERS – Contravention – Where the applicant has filed two Applications – Contravention and four Applications – Contempt alleging that the respondent has contravened interim and final parenting orders and that four of those alleged contraventions involve a flagrant challenge to the court’s authority such that the respondent is in contempt – Where the respondent seeks that the applications be summarily dismissed pursuant to s 45A – Where the applications are summarily dismissed on the basis that they have no reasonable prospect of success or are hopeless and doomed to fail.

FAMILY LAW – PRACTICE AND PROCEDURE – Stay of final property orders – Where a final property adjustment order was made in March 2020 – Where the applicant wife seeks a stay of all save two of those final property orders pending appeal – Where one of the orders which the wife does not seek to be stayed requires the respondent husband to pay to her $263,690 – Where the husband will be prevented from borrowing funds to pay that sum if a stay, in the form sort by the wife, is granted – Where paragraphs 26 to 36 of the final property order will stayed pending the determination of the wife’s appeal.

FAMILY LAW – PRACTICE AND PROCEDURE – Vexatious proceedings order – Where the applicant has frequently instituted and conducted vexatious contravention and contempt proceedings – Where the applicant will be prohibited from instituting contravention or contempt proceedings against the respondent without first obtaining leave of the court.

FAMILY LAW – COSTS – Circumstances justifying order – Where the respondent seeks costs incurred responding to the applicant’s applications on a party and party basis – Where the circumstances justify an order for costs – Where the applicant is ordered to pay the respondent’s costs fixed in the sum of $3,936.23.

Family Law Act 1975 (Cth) s 45A, s 117, Pt XIB
Evidence Act 1995 (Cth) Pt 3.2

Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106

APPLICANT:

Ms Herbert

RESPONDENT:

Mr Herbert

FILE NUMBER:

BRC

4902

2017

DATE DELIVERED:

23 July 2020

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Forrest J

HEARING DATE:

10 July 2020

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Mr Horvath
AP Hodgson & Associates

SOLICITOR FOR THE RESPONDENT:

Mr Rosen
Rosen Lawyers

Orders

That the following applications filed by the Applicant are summarily dismissed pursuant to s 45A(2) of the Family Law Act 1975 (Cth):
(i)Application - Contravention filed 25 October 2019;
(ii)Application - Contempt filed 22 January 2020;
(iii)Application - Contravention filed 6 May 2020;
(iv)Application - Contempt filed 6 May 2020 (re Contact);
(v)Application - Contempt filed 6 May 2020 (re Denigration);
(vi)Application - Contempt filed 3 June 2020.
That the Court being satisfied that the Applicant, Ms Herbert, has frequently instituted vexatious contravention and contempt proceedings in this Court against the Respondent, Mr Herbert, pursuant to s 102QB(2) of the Family Law Act 1975

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 Herbert and Herbert (No 3)

Details

AGLC: Herbert and Herbert (No 3) [2020] FamCA 603
Case: [2020] FamCA 603
Decision Date: 23 July 2020

CaseChat Overview and Summary

In the matter of *Herbert and Herbert (No 3)*, Forrest J of the Family Court of Australia considered applications by the applicant wife, Ms Herbert, alleging contravention and contempt of interim and final parenting orders by the respondent husband, Mr Herbert. The respondent husband sought the summary dismissal of these applications. The court also addressed the applicant wife's separate application for a stay of final property orders pending her appeal, and the respondent husband's request for costs.

The primary legal issues before the court were whether the applicant's contravention and contempt applications had no reasonable prospect of success and should be summarily dismissed, and whether the applicant had a sufficient basis to be granted a stay of certain final property orders pending her appeal. Additionally, the court was required to determine if the applicant's conduct warranted a vexatious proceedings order and whether the respondent was entitled to costs.

Forrest J summarily dismissed the applicant's contravention and contempt applications pursuant to s 45A of the *Family Law Act 1975* (Cth), finding they were hopeless and doomed to fail. The court was satisfied that the applicant had frequently instituted vexatious proceedings and, pursuant to s 102QB(2) of the Act, prohibited her from instituting further contravention or contempt proceedings against the respondent without first obtaining leave of the court. While granting a partial stay of specific paragraphs of the final property orders pending the wife's appeal, the court noted that this would impact the husband's ability to borrow funds to meet a payment obligation to the wife. The court ordered the applicant to pay the respondent's costs fixed at $3,936.23, to be offset against any sums the respondent might be ordered to pay the applicant.

Orders

Orders of the court

That the following applications filed by the Applicant are summarily dismissed pursuant to s 45A(2) of the Family Law Act 1975 (Cth):

(i) Application - Contravention filed 25 October 2019;

(ii) Application - Contempt filed 22 January 2020;

(iii) Application - Contravention filed 6 May 2020;

(iv) Application - Contempt filed 6 May 2020 (re Contact);

(v) Application - Contempt filed 6 May 2020 (re Denigration);

(vi) Application - Contempt filed 3 June 2020.

That the Court being satisfied that the Applicant, Ms Herbert, has frequently instituted vexatious contravention and contempt proceedings in this Court against the Respondent, Mr Herbert, pursuant to s 102QB(2) of the Family Law Act 1975 (Cth), the Applicant, Ms Herbert, is prohibited from instituting contravention and/or contempt proceedings against the Respondent, Mr Herbert, under the Family Law Act 1975 (Cth) in a court having jurisdiction under the said Act.

That paragraphs 26 to 36 (inclusive) of the Orders made by Justice Forrest on 25 March 2020 are stayed pending determination of the Applicant’s appeal to the Full Court of this Court against those Orders.

That the Applicant, Ms Herbert, shall pay the costs of the Respondent, Mr Herbert, of and incidental to these applications fixed in the sum of $3,936.23 such sum to be offset against the amount the Respondent is to pay the Applicant pursuant to paragraph 34 of the Orders made 25 March 2020 or any such other amount the Respondent may be ordered to pay the Applicant in the event that her appeal against the Orders of 25 March 2020 is successful.

That the hearing listed before his Honour Justice Forrest for 4 August 2020 be vacated.

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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