Peters and Ortona (No 3) - [2015] FamCA 960

FAMILY COURT OF AUSTRALIA

PETERS & ORTONA (NO 3)

[2015] FamCA 960

FAMILY LAW – PRACTICE & PROCEDURE — Applicant subject to s 102QB Vexatious Proceeding Order — 118 frivolous or vexatious proceedings — abuse of process — frequency of application — reinstatement of earlier applications which are not impacted by section 102QB order.

APPLICANT:

Ms Peters

RESPONDENT:

Mr Ortona

FILE NUMBER:

MLC

8590

2012

DATE DELIVERED:

6 November 2015

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Bennett J

HEARING DATE:

28 October 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT:

In person

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT:

In person

SOLICITOR FOR THE RESPONDENT:

Orders

The email correspondence from the mother to the Case Coordinator Team dated “15/10/2015 11.03 AM” be marked Exhibit “C” and remain on the Court file.
The email from the Associate to the Hon. Justice Bennett to the mother and the father dated “13/10/2015 07.40 AM” be marked Exhibit “D” and remain on the Court file.
By way of vexatious proceedings order:
(a)With effect from 28 October 2015, the mother is prohibited from instituting proceedings under the Family Law Act 1975 (Cth) (“the Act”) against or in relation to the father or the children without first having been granted leave to commence that proceeding pursuant to s 102QD of the Act,
(b)This vexatious proceedings order does not apply to:
i.any costs application arising from these orders, filed within the time prescribed under the Family Law Rules 2004,
ii.any appeal from these orders, provided such appeal is filed within the time prescribed under the Family Law Rules 2004 or such other time as is permitted by Order of the Full Court.
That the following applications of the mother be and are hereby reinstated and will be set down for hearing on a date to be fixed by me (but not necessarily before me) and such fixture be notified to each parent and the Independent Children’s Lawyer by email:
a)the contravention application filed on 12 August 2015;
b)the application in a case filed 16 September 2015;
c)the Initiating application filed 27 September 2015.
Upon the father providing notice in writing, by email to the mother and to the case co-ordinator, that he wishes to reinstate the following application, these applications be reinstated:
a)the contravention application filed 28 September 2015;
b)the application in a case filed on 28 September 2015.
IT IS NOTED the particular consequences arising from a vexatious proceedings order are set out in s 102QD of the Act, which provides:
(1)If a person is subject to a vexatious proceedings order prohibiting the person from instituting proceedings, or proceedings of a particular type, under this Act in a court having jurisdiction under this Act:
(a)that person must not institute proceedings, or proceedings of that type, in the court without the leave of the court under section 102QG; and
(b)another person must not, acting in concert with the person, institute proceedings, or proceedings of that type, in the court without the leave of…

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.

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Details

Case: [2015] FamCA 960
Decision Date: 6 November 2015

CaseChat Overview and Summary

In the matter of Peters and Ortona (No 3), Bennett J considered applications and cross-applications concerning parenting arrangements and alleged contraventions of court orders. The proceedings involved the mother and the father, with the Independent Children’s Lawyer also participating. The court was required to determine whether to make a vexatious proceedings order against the mother and to decide the status of various applications filed by both parents.

The primary legal issues before the court were the mother's conduct in instituting proceedings and whether it warranted a vexatious proceedings order under section 102QD of the *Family Law Act 1975* (Cth). Additionally, the court had to determine which of the mother's and father's applications should be reinstated for hearing and how those applications should be listed.

Bennett J reasoned that the mother's repeated applications and correspondence demonstrated a pattern of conduct that was an abuse of process, justifying the imposition of a vexatious proceedings order. This order prohibited the mother from instituting further proceedings under the Act against or in relation to the father or the children without first obtaining leave of the court, with specific exceptions for costs applications and appeals related to the current orders. The court also ordered the reinstatement of several of the mother's applications for hearing and provided a mechanism for the reinstatement of certain of the father's applications upon his written notice.

Orders

Orders of the court

The email correspondence from the mother to the Case Coordinator Team dated “15/10/2015 11.03 AM” be marked Exhibit “C” and remain on the Court file.

The email from the Associate to the Hon. Justice Bennett to the mother and the father dated “13/10/2015 07.40 AM” be marked Exhibit “D” and remain on the Court file.

By way of vexatious proceedings order:

(a) With effect from 28 October 2015, the mother is prohibited from instituting proceedings under the Family Law Act 1975 (Cth) (“the Act”) against or in relation to the father or the children without first having been granted leave to commence that proceeding pursuant to s 102QD of the Act,

(b) This vexatious proceedings order does not apply to:

i. any costs application arising from these orders, filed within the time prescribed under the Family Law Rules 2004,

ii. any appeal from these orders, provided such appeal is filed within the time prescribed under the Family Law Rules 2004 or such other time as is permitted by Order of the Full Court.

That the following applications of the mother be and are hereby reinstated and will be set down for hearing on a date to be fixed by me (but not necessarily before me) and such fixture be notified to each parent and the Independent Children’s Lawyer by email:

a) the contravention application filed on 12 August 2015;

b) the application in a case filed 16 September 2015;

c) the Initiating application filed 27 September 2015.

Upon the father providing notice in writing, by email to the mother and to the case co-ordinator, that he wishes to reinstate the following application, these applications be reinstated:

a) the contravention application filed 28 September 2015;

b) the application in a case filed on 28 September 2015.

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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