Mankiewicz & Anor and Swallow & Anor - [2014] FamCA 579

FAMILY COURT OF AUSTRALIA

MANKIEWICZ AND ANOR & SWALLOW AND ANOR

[2014] FamCA 579

FAMILY LAW – CHILDREN – Application by maternal great grandparents for parenting orders to spend time with great grandchildren – Respondent parents oppose that order being made – where the court of its own motion considered whether the application should be dismissed pursuant to the provisions of ss102QB(2)(a) of the Family Law Act 1975 (Cth) (“The Act”) – where the maternal grandfather previously found to be vexatious litigant – where it is found the applicants are acting in concert with the maternal grandfather who is a person who has frequently instituted and conducted vexatious proceedings in Australian courts and tribunals – where the maternal great grandparents’ application was instituted and pursued without any reasonable ground and its continuation would be an abuse of the process of the court – where the maternal great grandparents’ application for final orders was dismissed – where a further order is made pursuant to s102QB(2)(b) of the Act prohibiting the maternal great grandparents from instituting parenting proceedings in the future.

Family Law Act 1975 (Cth)

Bemert & Swallow [2009] FamCA 5

Rice v Asplund [1978] 6 Fam LR 570

1st APPLICANT:

Mr Mankiewicz

2nd APPLICANT:

Ms Mankiewicz

1st RESPONDENT:

Mr Swallow

2nd RESPONDENT:

Ms Swallow

FILE NUMBER:

SYC 6256 of 2013

DATE DELIVERED:

25 July 2014

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Watts J

HEARING DATE:

28 January 2014
(last written submission received 6 February 2014)

REPRESENTATION

SOLICITOR FOR THE 1ST APPLICANT:

Litigant in Person

SOLICTOR FOR THE 2ND APPLICANT:

No Appearance

SOLICITOR FOR THE 1ST RESPONDENT:

Barkus Doolan

SOLICITOR FOR THE 2ND RESPONDENT:

Barkus Doolan

Orders

The application by the maternal great grandparents for final orders as sought in the initiating application filed on 25 October 2013 be dismissed.
Pursuant to section 102QB(2)(b) of the Family Law Act 1975 (Cth) (“the Act”), the applicants, Mr Mankiewicz and Ms Mankiewicz, be prohibited from instituting parenting proceedings in respect to L born … 1997, E born … 2000, M born … 2004 and T born … 2006 (“the children”) under the Act in any court having jurisdiction under the Act.
It is noted that the statutory consequence of order 2 is that Mr Mankiewicz and Ms Mankiewicz may only institute further proceedings for a parenting order in respect to the children with the leave of the court and the applicants must not serve a copy of any such application for leave and any supporting affidavit upon the respondents unless the court so orders.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Mankiewicz and Anor & Swallow and Anor has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 6256/2013

Mr Mankiewicz and Ms Mankiewicz

Applicant

And

Ms Swallow and Mr Swallow

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

The applicants are the maternal great grandparents of four children…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Mankiewicz & Anor and Swallow & Anor

Details

AGLC: Mankiewicz & Anor and Swallow & Anor [2014] FamCA 579
Case: [2014] FamCA 579
Decision Date: 25 July 2014

CaseChat Overview and Summary

In the matter of *Mankiewicz & Anor and Swallow & Anor*, the applicants, maternal great grandparents, sought parenting orders for time with their great grandchildren. The respondent parents opposed this application. The court, on its own motion, considered whether the application should be dismissed under section 102QB(2)(a) of the *Family Law Act 1975* (Cth).

The central legal issue before the court was whether the applicants' application for parenting orders was vexatious and an abuse of process, warranting dismissal and a future prohibition on further proceedings. This arose in circumstances where the maternal grandfather, with whom the applicants were found to be acting in concert, had previously been declared a vexatious litigant due to his history of frequently instituting and conducting vexatious proceedings in Australian courts and tribunals.

Justice Watts reasoned that the maternal great grandparents' application was instituted and pursued without any reasonable grounds and that its continuation would constitute an abuse of the court's process. Applying the principles of vexatious litigation and abuse of process, the court found that the applicants were acting in concert with the grandfather, who had a history of vexatious litigation. Consequently, the court dismissed the applicants' application for final parenting orders.

In addition to dismissing the application, the court made a further order pursuant to section 102QB(2)(b) of the *Family Law Act 1975* (Cth), prohibiting the applicants, Mr and Ms Mankiewicz, from instituting any future parenting proceedings in respect to the children under the Act in any court having jurisdiction.

Orders

Orders of the court

The application by the maternal great grandparents for final orders as sought in the initiating application filed on 25 October 2013 be dismissed.

Pursuant to section 102QB(2)(b) of the Family Law Act 1975 (Cth) (“the Act”), the applicants, Mr Mankiewicz and Ms Mankiewicz, be prohibited from instituting parenting proceedings in respect to L born … 1997, E born … 2000, M born … 2004 and T born … 2006 (“the children”) under the Act in any court having jurisdiction under the Act.

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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