Mahoney & Anor and Dieter

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FAMILY COURT OF AUSTRALIA

MAHONEY AND ANOR & DIETER [2020] FamCA 667
FAMILY LAW – PRACTICE AND PROCEDURE – whether the failed contempt application prosecuted by the applicants against the respondent ought to be regarded as a vexatious proceeding
Family Law Act 1975 (Cth)
Rice & Asplund [1978] FamCA 84
FIRST APPLICANT: Mr Mahoney
SECOND APPLICANT: Ms Mahoney
RESPONDENT: Mr Dieter
FILE NUMBER: MLC 4348 of 2020
DATE DELIVERED: 14 August 2020
PLACE DELIVERED: Melbourne
PLACE HEARD: Melbourne
JUDGMENT OF: Bennett J
HEARING DATE: 20 July 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT: In person
SOLICITOR FOR THE APPLICANT:
COUNSEL FOR THE SECOND APPLICANT: In person
SOLICITOR FOR THE SECOND APPLICANT:
COUNSEL FOR THE RESPONDENT: Ms Harris
SOLICITOR FOR THE RESPONDENT: Melbourne Family Lawyers

Orders

  1. The Application in a Case filed by the First Applicant Stepfather and Second Applicant Mother on 14 June 2020 was instituted and conducted as a vexatious proceeding within the meaning of s 102(Q)(1) of the Family Law Act 1975.

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 Mahoney & Dieter 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 MELBOURNE

FILE NUMBER: MLC 4348 of 2020

MR MAHONEY

First Applicant

And

MS MAHONEY

Second Applicant

And

MR DIETER
Respondent

REASONS FOR JUDGMENT

Introduction

  1. An application for the father to be dealt with for contempt came before me in the judicial duty list, on the court’s Microsoft Teams platform, and was dismissed. At the conclusion of the hearing, I reserved my decision as to whether the failed contempt application prosecuted by Mr Mahoney and the mother, Ms Mahoney, against the father Mr Dieter ought to be regarded as a vexatious proceeding. These reasons explain why I have decided that failed contempt application is a vexatious proceeding within the meaning of s 102Q(1) of the Family Law Act 1975 (“the Act”).

Relevant history

  1. X was conceived as the result of an extra marital relationship between the mother and the father, Mr Dieter.  At all material times, Mr Mahoney was and remains the mother’s husband and partner in life.  He is X’s stepfather.  He has assisted the mother in all the parenting proceedings between the mother and the father by paying all costs and acting as the mother’s McKenzie friend up until recently when he has made himself a party to parenting proceedings in his own right.

  2. The parenting proceedings concern X who is aged 9 years.  The proceedings have an extensive history in New Zealand, commencing in 2014, and also in Australia.  

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Details
Case
[2020] FamCA 667
Decision Date

CaseChat Overview and Summary

In the matter of *Mahoney & Anor and Dieter*, heard by Bennett J, the First Applicant Stepfather and Second Applicant Mother commenced an application on 14 June 2020. The nature of the dispute, as determined by the court, was that this application constituted a vexatious proceeding.

The central legal issue before the court was whether the application filed by the applicants fell within the definition of a vexatious proceeding as contemplated by section 102(Q)(1) of the *Family Law Act 1975*.

Bennett J found that the application indeed constituted a vexatious proceeding under the relevant section of the *Family Law Act 1975*. The court's reasoning, though not detailed in the provided text, led to the conclusion that the proceeding met the criteria for being vexatious.

Consequently, the court ordered that the application instituted by the First Applicant Stepfather and Second Applicant Mother on 14 June 2020 was to be conducted as a vexatious proceeding within the meaning of s 102(Q)(1) of the *Family Law Act 1975*. This order is subject to its formal entry into the Court’s records.

Orders

Orders of the court

1.

The Application in a Case filed by the First Applicant Stepfather and Second Applicant Mother on 14 June 2020 was instituted and conducted as a vexatious proceeding within the meaning of s 102(Q)(1) of the Family Law Act 1975.

Note: The form of the order is subject to the entry of the order in the Court’s records.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.