Marland & Colburt

[2021] FamCA 434

FAMILY COURT OF AUSTRALIA

Marland & Colburt [2021] FamCA 434

File number(s):	PAC 1068 of 2021
Judgment of:	FOSTER J
Date of judgment:	16 June 2021
Catchwords:	FAMILY LAW – PRACTICE AND PROCEDURE – SUMMARY DISMISSAL – where application same as previous application dismissed by the Federal Circuit Court – where application dismissed under Rule 10.12.
Legislation:	Family Law Rules 2004 (Cth) rr 1.10, 10.12, 10.14
Number of paragraphs:	10
Date of hearing:	16 June 2021
Place:	Parramatta
Applicant – self‑represented litigant:	Mr Marland
Respondent – self‑represented litigant:	Ms Colburt

ORDERS

PAC 1068 of 2021
BETWEEN:	MR MARLAND Applicant
AND:	MS COLBURT Respondent

ORDER MADE BY:	FOSTER J
DATE OF ORDER:	16 JUNE 2021

THE COURT ORDERS THAT:

1.The application initiating proceedings filed by the father on 1 March 2021 is struck out and dismissed.

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

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 17.02 Family Law Rules 2004 (Cth).

IT IS NOTED that publication of this judgment by this Court under the pseudonym Marland & Colburt has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

EX TEMPORE REASONS FOR JUDGMENT

FOSTER J:

1. The application before the Court is an application initiating proceedings filed by the father on 1 March 2021.  The orders sought by him, in summary, are that the mother be responsible with the payment of any and all school fees and expenses at B School, Suburb C for the child of the relationship, X and, otherwise, should any party refuse or neglect to sign any document necessary to give effect to the orders sought, that the Registrar of the Court be appointed to sign documents on behalf of the defaulting party.

2. These proceedings have had a long and inglorious litigation history.  On 15 March 2019, Stephenson J delivered a lengthy judgment in relation to parenting.  In relation to those parenting orders, her Honour ordered in summary:

   (a)that all existing orders in relation to the child, X be discharged,

   (b)that the father have sole parental responsibility for the child,

   (c)that the father keep the mother advised as to X’s progress including, but not limited to, matters of X’s well-being, health, education, extra-curricular activities,

   (d)that X spend time and communicate with the mother, as he and the mother agree from time to time and,

   (e)more importantly, the father will do all things necessary to ensure that X completes his secondary education at B School.

3. Subsequent to the judgment of her Honour, it appears that the father made application, only a short time later, to the Federal Circuit Court of Australia at Parramatta, curiously not the Federal Circuit Court in Sydney where the matter has had a more substantial judicial history. 

4. In that application, filed on 16 September 2019, the father sought orders, both final and interim, that the mother be responsible for the payment of any and all school fees and expenses of B School, Suburb C for the child, X.  The application of the father filed in the Federal Circuit Court on 16 September 2019 came before Judge Newbrun.  An application relating to the proceedings was heard by his Honour on 16 December 2019 and judgment was delivered by his Honour on 29 January 2020. 

5. The orders made by his Honour were:

   (1)The father’s Initiating Application filed 16 September 2019 is dismissed for want of jurisdiction in the Court.

   (2)The father’s Application in a Case filed 16 January 2020 is dismissed for want of jurisdiction in the Court.   

6. Notwithstanding the orders made by Judge Newbrun on 29 January 2020, it appears that the father has not sought to appeal those orders made by Judge Newbrun to the Full Court of the Family Court of Australia. So those orders of Judge Newbrun remain extant. The provisions of the Family Law Rules 2004, insofar as they apply to this Court, provide in rule 1.10:

   (1)Unless a legislative provision states otherwise, the court may make an order, on application or on its own initiative, in relation to any matter mentioned in these Rules.

   (2)      When making an order, the court may:

   (a)       impose terms and conditions;

   (b)       make a consequential order;

   (c)       specify the consequence of failure to comply with the order; and

   (d)take into account whether a party has complied with a pre-action procedure.

7. Rule 10.12 of the Family Law Rules 2004 provides:

   A party may apply for summary orders after a response has been filed if the party claims, in relation to the application or response, that:

   (a)  the court has no jurisdiction;

   (b)  the other party has no legal capacity to apply for the orders sought;

   (c)  it is frivolous, vexatious or an abuse of process; or

   (d)  there is no reasonable likelihood of success.

8. Rule 10.14 of the Family Law Rules 2004 provides that:

   On an application under this Part, the court may:

   (a)       dismiss any part of the case;

   (b)       decide an issue;

   (c)       make a final order on any issue;

   (d)       order a hearing about an issue or fact; or

   (e)with the consent of the parties, order arbitration about the case or part of the case.

   Note:This list does not limit the powers of the court. The court may make orders on an application, or on its own initiative (see rule 1.10).

9. It is readily apparent that the issue that is agitated by the father in this further Initiating Application in this Court was precisely the same issue that was before the Court and determined by Judge Newbrun under Rule 10.12 who found no jurisdiction and dismissed the then application and from whose orders there has been no appeal.

10. Accordingly, it is the view of this Court the present application before the Court is frivolous, vexatious and an abuse of process. 

I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Foster.

Associate:       

Dated:       16 June 2021