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 |
| 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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- Case
- [2016] FamCAFC 153
- Decision Date
CaseChat Overview and Summary
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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