Mankiewicz and Anor & Swallow and Anor

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FAMILY COURT OF AUSTRALIA

MANKIEWICZ AND ANOR  & SWALLOW AND ANOR [2016] FamCAFC 153

FAMILY LAW – APPEAL – CHILDREN – Where the maternal great grandparents appeal against dismissal of their application to spend time with their great grandchildren and a vexatious proceedings order – Where the appellants previously found to lack standing to apply for parenting orders – Where the appellants subsequently instituted parenting proceedings on the same facts and seeking the same orders – Whether the appellants had standing to institute parenting proceedings – Where prior to determining the question of standing, the primary judge made orders under s 102QB(2) dismissing the proceedings and restraining the appellants from instituting further parenting proceedings – Whether the primary judge had jurisdiction to determine the appellants’ fresh application – Consideration of ss 65C(c) and 102QB of the Family Law Act 1975 (Cth) – Where the orders were made within the court’s jurisdiction and power – Where the grounds of appeal challenge the exercise of discretion of the primary judge – Where findings were open – No error demonstrated – Appeal dismissed.

FAMILY LAW – COSTS – Where the appellants’ were wholly unsuccessful on appeal – Where the circumstances justify an order for indemnity costs – Appellants to pay the respondents’ indemnity costs fixed in the amount of $15,000.

Family Law Act 1975 (Cth): ss 4(1), 65C, 93A(2), 94, 102Q, 102QB, 102QE, 117, 118
A (by her next friend) and GS & Ors (2004) FLC 93-199
Aldridge & Keaton (2009) FLC 93-421; (2010) 42 Fam LR 369
Australian Conservation Foundation Inc v Commonwealth (1980) 146 CLR 493
Bemert & Swallow [2009] FamCA 5
Bemert & Swallow (2010) FLC 93-441
CDJ v VAJ (1998) 197 CLR 172
Cheney v Spooner (1929) 41 CLR 532, 536-537
Colgate-Palmolive Co and Anor v Cussons Pty Ltd (1993) 46 FCR 225
DMW and Anor v CGW (1982) 151 CLR 491
Finlayson v Finlayson and Gilliam (2002) FLC 93-121
Gedeon v Commissioner of NSW Crime Commission (2008) 236 CLR 120
Kuczborski v Queensland (2014) 254 CLR 51
Limousin v Limousin (Costs) (2007) 38 Fam LR 478
Minister for Immigration and Multicultural Affairs v Eshetu  (1999) 197 CLR 611
Minister for Immigration and Multicultural and Indigenous Affairs v B (2004) 219 CLR 365
Munday v Bowman (1997) FLC 92-784
Panayotides v Panayotides (1997) FLC 92-733
Penfold v Penfold (1980) 144 CLR 311
Prantage & Prantage (2013) FLC 93-544
R v Ross-Jones; Ex parte Green (1984) 156 CLR 185
Ridley v Whipp (1916) 22 CLR 381
FIRST APPELLANT: Mr Mankiewicz
SECOND APPELLANT: Mrs Mankiewicz
FIRST RESPONDENT: Mr Swallow
SECOND RESPONDENT: Ms Swallow
FILE NUMBER: SYC 6256 of 2013
APPEAL NUMBER: EA 112 of 2014
DATE DELIVERED: 16 August 2016
PLACE DELIVERED: Sydney
PLACE HEARD: Sydney
JUDGMENT OF: Ryan, Murphy & Austin JJ
HEARING DATE: 24 May 2016
LOWER COURT JURISDICTION: Family Court of Australia
LOWER COURT JUDGMENT DATE: 25 July 2014
LOWER COURT MNC: [2014] FamCA 579

REPRESENTATION

FOR THE FIRST APPELLANT: The first appellant appeared through the second…
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Details
Case
[2016] FamCAFC 153
Decision Date

CaseChat Overview and Summary

The maternal great-grandparents, Mankiewicz and Swallow, appealed against the dismissal of their application to spend time with their great-grandchildren, and the imposition of a vexatious proceedings order. The appeal was heard by the Family Court of Australia. The great-grandparents had previously been found to lack standing to apply for parenting orders, but had subsequently instituted parenting proceedings on the same facts and seeking the same orders. The primary judge dismissed the proceedings and restrained the appellants from instituting further parenting proceedings under s 102QB(2) of the Family Law Act 1975 (Cth). The appellants argued that the primary judge did not have jurisdiction to determine their fresh application, but the court found that the orders were made within the court's jurisdiction and power. The appeal was dismissed, and the appellants were ordered to pay the respondents' indemnity costs in the amount of $15,000.

The legal issues before the court were whether the great-grandparents had standing to institute parenting proceedings, and whether the primary judge had jurisdiction to determine their fresh application. The court considered sections 65C(c) and 102QB of the Family Law Act 1975 (Cth), which provide for the court's jurisdiction and power to make orders in parenting proceedings, and to restrain parties from instituting further proceedings. The court found that the primary judge had jurisdiction to determine the fresh application, and that the orders were made within the court's jurisdiction and power. The court also found that the primary judge's exercise of discretion was not in error, and that the findings were open.

The court dismissed the appeal and made orders that all outstanding applications in the appeal be dismissed, and that the appellants pay the respondents' indemnity costs in the amount of $15,000 within three months of the date of the orders. The court found that the appellants were wholly unsuccessful on appeal, and that the circumstances justified an order for indemnity costs. The form of the order is subject to the entry of the order in the Court's records.

Orders

Orders of the court

1.

All outstanding Applications in an Appeal be dismissed.

2.

The appeal be dismissed.

3.

The appellants pay the respondents’ indemnity costs in the amount of $15,000 within three (3) months of the date of these orders.

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

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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