Kabat & Anor & Garacia (No 3) - [2019] FamCA 505

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

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…

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: [2019] FamCA 505
Decision Date: 31 July 2019

CaseChat Overview and Summary

The proceeding concerned an application by the plaintiffs, Kabat and Garacia, for an order that the defendant, Mr. Smith, be restrained from further prosecuting or continuing with a claim he had filed in the Supreme Court of New South Wales. The plaintiffs sought this injunction on the basis that Mr. Smith's claim was vexatious and an abuse of process. The application was heard by Carew J in the Supreme Court of New South Wales.

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