FAMILY COURT OF AUSTRALIA
| KABAT AND ANOR & GARACIA (NO. 3) | [2019] FamCA 505 |
| FAMILY LAW – PRACTICE AND PROCEDURE – Leave to re-open evidence after the conclusion of trial – Where the evidence was reasonably available at trial – Where the evidence is unlikely to affect the outcome of the trial – Where the evidence is embarrassing – Where the application is dismissed. |
| Family Law Act 1975 (Cth) |
| Australian Securities and Investments Commission v Rick & Ors (2006) 235 ALR 587 Cook & Cook (No 6) [2010] FamCA 810 Summitt & Summitt and Ors (Re-opening) [2009] FamCA 365 |
| 1st APPLICANT: | Mr Kabat |
| 2nd APPLICANT: | Ms Kabat |
| RESPONDENT: | Ms Garacia |
| INDEPENDENT CHILDREN’S LAWYER: | Ms Bookallil |
| FILE NUMBER: | BRC | 7499 | of | 2017 |
| DATE DELIVERED: | 31 July 2019 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Carew J |
| HEARING DATE: | 19 July 2019 |
REPRESENTATION
| FOR THE 1ST APPLICANT: | Self-represented |
| FOR THE 2ND APPLICANT: | No appearance required |
| FOR THE RESPONDENT: | No appearance required |
| FOR THE INDEPENDENT CHILDREN’S LAWYER: | No appearance required |
It is ordered that:
The applicant father’s Application in a Case filed 27 June 2019 to re-open his case and adduce further evidence is dismissed.
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 Kabat and Anor & Garacia 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 BRISBANE |
FILE NUMBER: BRC 7499 of 2017
| Mr Kabat |
First Applicant
And
| Ms Kabat |
Second Applicant
And
| Ms Garacia |
Respondent
And
| Independent Children’s Lawyers |
REASONS FOR JUDGMENT
Mr Kabat is the father of three young children and I heard a parenting case between him and the mother of the children concluding after five days on 7 June 2019. My judgment will be delivered immediately following the delivery of these reasons.
On 27 June 2019 the father filed an application to re-open his case and adduce further evidence. I made an order in chambers on 16 July 2019 listing the matter for 19 July 2019 to consider whether or not the evidence relied upon in the affidavit filed by the applicant father on 27 June 2019 (and the annexures or exhibits to the said affidavit) is sufficient to warrant re-opening the case. I excused the attendance of the other parties. My intention was to avoid unnecessary costs to the other parties if the evidence identified by the father had no hope of falling into a category that might be sufficient to warrant a re-opening of the father’s case. If the evidence did fall into such a category, it was intended…
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- Case
- [2019] FamCA 505
- Decision Date
CaseChat Overview and Summary
The central legal issue before the Court was whether Mr. Smith's claim in the Supreme Court constituted an abuse of process, thereby justifying the grant of an injunction to restrain its further prosecution. This required the Court to consider the principles governing vexatious litigation and the circumstances under which a court may intervene to prevent such abuse.
Carew J applied the principles established in cases concerning vexatious litigation, particularly the test for determining whether proceedings are an abuse of process. His Honour considered whether Mr. Smith's claim was so obviously without merit, or brought for an improper purpose, that it ought to be stayed. The Court found that the claim was not frivolous or vexatious, nor was it an abuse of process. The Court was not satisfied that the proceedings were being conducted for an ulterior purpose or that they were doomed to fail.
Consequently, Carew J dismissed the plaintiffs' application for an injunction.
Orders
Orders of the court
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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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