Mealon and Mealon - [2016] FCCA 2805

FEDERAL CIRCUIT COURT OF AUSTRALIA

MEALON & MEALON

[2016] FCCA 2805

Catchwords:
FAMILY LAW – Practice and Procedure – Vexatious proceedings.

Legislation:

Family Law Act 1975, ss.102Q, 102QB, 102QE

Cases cited:

Searle & Pencious [2016] FamCA 135

Attorney-General (New South Wales) v Gargan [2010] NSWSC 1192
Official Trustee in Bankruptcy v Gargan (No 2) [2009] FCA 398
Cannon & Acres [2014] FamCA 104
Marsden & Winch [2013] FamCAFC 177

Applicant:

MR MEALON

Respondent:

MS MEALON

File Number:

ADC 491 of 2010

Judgment of:

Judge Kelly

Hearing dates:

9 March 2016 & 28 April 2016

Date of Last Submission:

28 April 2016

Delivered at:

Adelaide

Delivered on:

1 November 2016

REPRESENTATION

Counsel for the Applicant:

Mr P Heinrich

Solicitors for the Applicant:

Adelaide Family Law

The Respondent:

In Person

ORDERS

Pursuant to s.102QB(2)(b) of the Family Law Act 1975 (“the Act”) the Respondent wife is prohibited from instituting any proceedings under the Act against or in relation to the Applicant husband without first being granted leave to commence that proceeding pursuant to s.102QE of the Act.
In the event the Respondent wife is granted leave to institute proceedings, the Court shall consider whether an Order for security of costs should be made, pursuant to s.102QB(2)(c).
Pursuant to s.102QB(2)(a) of the Act the following proceedings are dismissed:
(a)the wife’s amended Response to an Application in a Case filed 4 March 2015;
(b)paragraphs 1 and 4 of the orders sought in the wife’s Application in a Case filed 11 December 2015;
(c)the wife’s Application in a Case filed 12 January 2016; and
(d)the wife’s Initiating Application filed 29 March 2016.
The husband’s Enforcement Warrant is stayed pending further order of the Court.
The wife’s Applications in a Case filed 18 December 2015 and 15 March 2016 are dismissed as finalised.
The parties are invited to make submissions in relation to paragraphs 2 and 3 of the wife’s Application in a Case filed 11 December 2015 and her Application in a Case filed 29 March 2016.

IT IS NOTED that publication of this judgment under the pseudonym Mealon & Mealon is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADC 491 of 2010

MR MEALON

Applicant

And

MS MEALON

Respondent

REASONS FOR JUDGMENT

Introduction

These proceedings relate to the husband’s Application in a Case filed 23 October 2015 and, in particular, orders sought pursuant to s.102QB(2) and (3) seeking that the wife in these proceedings be declared a vexatious litigant and be restrained from instituting further proceedings under the Family Law Act1975. Not surprisingly, the wife opposes the Application and indeed, has filed further interim proceedings herself which she seeks to pursue.

Background

The parties were engaged in lengthy property proceedings which were finally resolved by Consent Orders entered into on 29 November 2011 (“the 2011 final Orders”). Various difficulties subsequently arose with the implementation of those orders, which lead to each party filing interim Applications in early 2012.
On 19…

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 Mealon and Mealon

Details

AGLC: Mealon and Mealon [2016] FCCA 2805
Case: [2016] FCCA 2805
Decision Date: 1 November 2016

CaseChat Overview and Summary

In the matter of *Mealon and Mealon*, heard by Judge Kelly, the dispute concerned applications made by the Respondent wife against the Applicant husband. The proceedings involved multiple applications and responses filed by the wife, some of which were dismissed by the Court.

The Court was required to determine whether to prohibit the Respondent wife from instituting further proceedings under the *Family Law Act 1975* without leave, and to consider whether an order for security of costs should be made if leave were granted. Additionally, the Court had to consider the dismissal of various applications filed by the wife.

Judge Kelly applied provisions of the *Family Law Act 1975*, specifically sections 102QB(2)(a), (b), and (c). The Court ordered that the Respondent wife be prohibited from instituting further proceedings under the Act against the Applicant husband without first obtaining leave pursuant to section 102QE. The Court also dismissed several of the wife's applications, including her amended Response and various Applications in a Case and Initiating Applications. The husband's Enforcement Warrant was stayed pending further order. The Court invited submissions regarding specific paragraphs of two of the wife's applications.

Orders

Orders of the court

Pursuant to s.102QB(2)(b) of the Family Law Act 1975 (“the Act”) the Respondent wife is prohibited from instituting any proceedings under the Act against or in relation to the Applicant husband without first being granted leave to commence that proceeding pursuant to s.102QE of the Act.

In the event the Respondent wife is granted leave to institute proceedings, the Court shall consider whether an Order for security of costs should be made, pursuant to s.102QB(2)(c).

Pursuant to s.102QB(2)(a) of the Act the following proceedings are dismissed:

(a) the wife’s amended Response to an Application in a Case filed 4 March 2015;

(b) paragraphs 1 and 4 of the orders sought in the wife’s Application in a Case filed 11 December 2015;

(d) the wife’s Initiating Application filed 29 March 2016.

The husband’s Enforcement Warrant is stayed pending further order of the Court.

The wife’s Applications in a Case filed 18 December 2015 and 15 March 2016 are dismissed as finalised.

The parties are invited to make submissions in relation to paragraphs 2 and 3 of the wife’s Application in a Case filed 11 December 2015 and her Application in a Case filed 29 March 2016.

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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