Mahoney & Anor and Dieter

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.