Lenardi & Lenardi (No. 3)

[2011] FamCA 608

FAMILY COURT OF AUSTRALIA

LENARDI & LENARDI (NO. 3) [2011] FamCA 608

FAMILY LAW – PRACTICE AND PROCEDURE – Institution of further proceedings

Family Law Act 1975 (Cth)

Family Law Rules 2004 (Cth)

APPLICANT: Mr Lenardi

RESPONDENT: Ms Lenardi

FILE NUMBER: PAC 1472 of 2007

DATE DELIVERED: 3 August 2011

PLACE DELIVERED: Parramatta

JUDGMENT OF: Collier J

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Campton

SOLICITOR FOR THE APPLICANT: McPhee Kelshaw

COUNSEL FOR THE RESPONDENT: Mr Gould

SOLICITOR FOR THE RESPONDENT: Family Law Matters

IT IS NOTED that publication of this judgment by this Court under the pseudonym Lenardi & Lenardi (No. 3) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Act.

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 1472 of 2007

Mr Lenardi

Applicant Husband

And

Ms Lenardi

Respondent Wife

REASONS FOR JUDGMENT

1. During the course of submissions in relation to costs in this matter, I raised with counsel for each of the parties the issue of restricting the ability of either or both of these parties to bring further applications before the Court. I did so in an effort to bring litigation between these parties to an end.

2. I have received written submissions in respect of this issue.

3. It is abundantly clear that in certain circumstances, the Family Court of Australia has power to prohibit a party from instituting further proceedings without leave of the Court. The power to do this may be found firstly within section 118(1) of the Family Law Act 1975 (Cth). Subsection (c) provides that if the court considers it appropriate it can, upon the application of a party to the proceedings, order that the person who instituted the proceedings, shall not, without leave of a court having jurisdiction under this Act, institute proceedings under this Act of the kind specified in the order. There are qualifications to the use of this power. First, it must be exercised on the application of a party. Secondly, the power can only be used where, having been satisfied that the proceedings are frivolous or vexatious, the court has dismissed the proceedings.

4. Whilst the substantive proceedings between these parties were hard fought and unnecessarily complex, there is no suggestion that they were frivolous and/or vexatious. I have made no order, nor will I make an order, dismissing the proceedings or any part of them on that basis.

5. There is an inherent power in the court to dismiss frivolous and vexatious proceedings in the appropriate circumstances and to prohibit the commencement of further proceedings. In this case, I am not satisfied that it would be an appropriate exercise of discretion to bypass s 118 and rely on the inherent power to achieve a result that cannot be achieved by the application of s 118.

6. The third basis upon which such an order can be made is to be found within Rule 11.04(1) of the Family Law Rules 2004 (Cth), which provides that if the court is satisfied that an applicant has frequently started a case or an appeal that is frivolous, vexatious or an abuse of process, the court may under subsection (b) order that the applicant may not, without the court’s permission, file or continue an application.

7. Subrule 11.04(2) provides that the order may be made on the Court’s own initiative or on the application of a party.

8. Reliance upon this rule depends upon a finding that an applicant has frequently started a case or appeal that is frivolous, vexatious or an abuse of process. Whilst I have already stated that the case before me was hard fought and unnecessarily complex, I am no more able under this particular rule to make a finding that the proceedings were frivolous or vexatious than under either s 118 or in respect of the court’s inherent power. I am satisfied that the case before me was not an abuse of process. There were a number of interim applications bought during the course of the hearing. I am not satisfied that that would bring either of the parties within the expression “frequently started a case”.

9. Thus, I am satisfied that, having examined all the bases upon which an order restraining either party from commencing fresh proceedings, such an order cannot be grounded under any of the heads of power I have identified in these reasons. 

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Collier delivered on 3 August 2011.

Associate:     

Date:              3 August 2011