FAMILY LAW – APPEAL – Application for permission to commence parenting proceedings – Where the Application for permission is in the context of a s 118 Family Law Act 1975 (Cth) order made against the mother for previously bringing frivolous or vexatious proceedings – Where the mother is seeking a substantial change in existing parenting orders – Where the Application must be considered in the context of the history of litigation which has been long and complex – Whether the allegations of abuse made by the mother are of a similar character to previous allegations the mother has made – Where the court was not satisfied that the case has a reasonable likelihood of success that would warrant granting permission to commence proceedings.
FAMILY LAW – APPEAL – Application to adduce further evidence – Where the further evidence would not establish that the trial judge’s decision was not open to her or that her decision was erroneous.
Family Law Act 1975 (Cth): ss 118; 60B; 93A Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 (Cth) Family Law Rules 2004 (Cth): r 11.5
CDJ v VAJ (1998) 197 CLR 172 DL & W (2012) FLC 93-496 Freeman andFreeman (1987) FLC 91-857 Marsden v Winch (2009) 42 Fam LR 1 McNamara and Rose [2007] FamCA 529 Re Attorney-General (Cth); Ex parte Skyring(1996) 135 ALR 29 Rice & Asplund (1979) FLC 90-725 SPS & PLS (2008) FLC 93-363 Zabaneh & Zabaneh (1986) FLC 91-766
The appeal against the orders of the Honourable Justice Dawe made on
20 July 2012 is dismissed.
The appellant’s application to adduce further evidence filed on
14 February 2013 is dismissed.
Within six (6) months of agreement or assessment as to quantum, the appellant pay the costs of the respondent in relation to this appeal.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Langmeil & Grange has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT ADELAIDE
Appeal Number: SOA 62 of 2012 File Number: ADC 365 of 2008
Ms Langmeil
Appellant
And
Mr Grange
Respondent
REASONS FOR JUDGMENT
Introduction
This is an appeal by Ms Langmeil (“the mother”) against an order made by Dawe J on 20 July 2012 that the mother’s application for permission to commence parenting proceedings be dismissed. Permission is…
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
AGLC
LANGMEIL & GRANGE
[2013] FamCAFC 31
Case
[2013] FamCAFC 31
Decision Date
CaseChat Overview and Summary
Langmeil and Grange were the parties involved in an appeal concerning an application for permission to commence parenting proceedings, in light of a previous order made against the mother for bringing frivolous or vexatious proceedings. The mother was seeking a substantial change in the existing parenting orders, and the application had to be considered against a backdrop of a long and complex litigation history. The court was required to decide whether the allegations of abuse made by the mother were of a similar character to those she had made previously, and whether there was a reasonable likelihood of success that would warrant granting permission to commence the proceedings.
The court determined that the allegations of abuse were of a similar character to the previous allegations made by the mother, and that the case did not have a reasonable likelihood of success. Consequently, the application for permission to commence parenting proceedings was dismissed. Additionally, the court dismissed the appellant's application to adduce further evidence, as the proposed evidence would not establish that the trial judge's decision was not open to her or that her decision was erroneous.
The appeal against the orders of the Honourable Justice Dawe made on 20 July 2012 was dismissed, and the appellant's application to adduce further evidence filed on 14 February 2013 was also dismissed. The appellant was ordered to pay the costs of the respondent in relation to this appeal within six months of agreement or assessment as to quantum.
Orders
Orders of the court
1.
The appeal against the orders of the Honourable Justice Dawe made on
20 July 2012 is dismissed.
2.
The appellant’s application to adduce further evidence filed on
14 February 2013 is dismissed.
3.
Within six (6) months of agreement or assessment as to quantum, the appellant pay the costs of the respondent in relation to this appeal.