MAHONEY & DIETER

[2019] FamCA 633

FAMILY COURT OF AUSTRALIA

mAHONEY & dIETER

[2019 ] FamCA 633

FAMILY LAW – CHILDREN – Application for summary dismissal made by father – where parenting orders made in New Zealand and registered in Australia – where child lives with the father – Rice & Asplund principle – where father seeks order for a vexatious proceedings order against mother – orders made.

Family Law Act 1975 (Cth) ss. 60CA, 69ZX, 102Q

Family Law Regulations 1984 (Cth) reg.23

Gebrien v Todd [2015] NZFC 4949

Gebrien v Todd [2017] NZFC 2493

Lindon v The Commonwealth (No 2) (1996) 70 ALJR 541

Mahoney & Dieter [2019] FamCAFC 39

Marsden & Winch (2009) 42 Fam LR 1

Rice and Asplund (1979) FLC 90‑725

Stativa & Stativa (2015) FamCAFC 170

APPLICANT:

Ms Mahoney

RESPONDENT:

Mr Dieter

FILE NUMBER:

MLC

11835

of

2017

DATE DELIVERED:

16 September 2019

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Hartnett J

HEARING DATE:

14 August 2019

REPRESENTATION

THE APPLICANT:

In Person

COUNSEL FOR THE RESPONDENT:

Ms Harris

SOLICiTOR FOR THE RESPONDENT:

Melbourne Family Lawyers

Orders

(1)       The application filed 9 May 2019 is dismissed.

(2)      The application otherwise contained in response filed 6 June 2019 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 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 11835  of 2017

Ms Mahoney

Applicant

And

Mr Dieter

Respondent

REASONS FOR JUDGMENT

Preliminary

1.        On 9 May 2019 the Applicant mother (‘the mother’) filed an initiating application. She sought final and interim parenting orders in respect of the parties’ biological child, X, who was born in 2011 (‘the child’) and who is now aged eight years and four months. 

2.        The mother swore her affidavit in these proceedings in the month following the delivery of reasons for judgment by the Full Court of the Family Court of Australia in respect of an appeal lodged by the mother against orders made by Austin J, which dismissed her earlier initiating application for parenting orders.  The Full Court made orders on 7 March 2019, relevantly, that:-

…

(2)      The appeal be dismissed.

(3)      There be no order as to costs.

3.        The mother’s application in these proceedings is in terms essentially the same as those set out in the mother’s earlier application filed 14 November 2017, which was dismissed by Austin J on 27 June 2018. The mother relies upon in these proceedings an affidavit of evidence sworn by her on 11 April 2019 (and…