Prantage and Prantage - [2014] FamCA 563

FAMILY COURT OF AUSTRALIA

PRANTAGE & PRANTAGE

[2014] FamCA 563

FAMILY LAW – CHILDREN – application to change parenting orders – 118(1)(c) of the Family Law Act 1975 – Bias alleged – Costs.

Family Law Act 1975 (Cth) s 118(1)(c)
Family Violence Protection Act 2008 (Vic) ss 70, 71

Bolitho and Cohen (2005) 33 Fam LR 471
Derek and Derek [2005] FamCA 356
DJC v SJS and Another (2005) 34 Fam LR 329
DL v W [2012] FamCAFC 5
Kettle & Green (Unreported, Family Court of Australia, 2 April 2008)
Oscar & Traynor [2008] FamCAFC 158

Prantage & Prantage (2013) 49 Fam LR 197
Prantage & Prantage [2014] FamCA 541
Re: H & Ors (1996) 1 All ER 1
SPS & PLS (2008) 217 FLR 164

APPLICANT:

Mr Prantage

RESPONDENT:

Ms Prantage

FILE NUMBER:

MLC

11263

2008

DATE DELIVERED:

23 July 2014

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Bennett J

HEARING DATE:

22 – 24, 27 May 2013, 27 March 2014, 21 May 2014, 17 July 2014

LAST WRITTEN SUBMISSION:

16 June 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT:

In person

SOLICITOR FOR THE APPLICANT:

N/A

COUNSEL FOR THE RESPONDENT:

Ms Smallwood

SOLICITOR FOR THE RESPONDENT:

Lampe Family Lawyers

Orders

The father’s application filed 27 December 2012 be and is hereby dismissed.
Pursuant to section 118(1)(c) of the Family Law Act 1975 the applicant father be restrained from instituting proceedings under the Family Law Act for parenting orders without leave of the Court.
Any party wishing to make an application for costs in this proceeding do so by written submission filed and served not later than 14 days hence and any party against whom costs are sought file and serve any submissions in response in writing within 14 days of service upon them of the other party’s submissions.
The submissions as to costs are to be not longer than four single sided pages of double spaced text in a font not smaller than 13 point.
The father pay the costs of the attendance by Dr NZ at court in May 2013 to give evidence fixed in the sum of $1,800 unless otherwise agreed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Prantage & Prantage (No 2) 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 MELBOURNE

FILE NUMBER: MLC 11263 of 2008

Mr Prantage

Applicant

And

Ms Prantage

Respondent

REASONS FOR JUDGMENT

Introduction

These proceedings concern M born … 1998 (15 years old) and D born … 2002 (12 years old) and I will decide three issues.
First, whether the father should be able to re-litigate parenting arrangements which were concluded by final orders sought, and made, by consent by Cronin J on 2 March 2012 when the father was represented by lawyers. The final parenting orders provided for the mother to have sole parental responsibility for the children, for the children to live with the mother and…

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 Prantage and Prantage

Details

AGLC: Prantage and Prantage [2014] FamCA 563
Case: [2014] FamCA 563
Decision Date: 23 July 2014

CaseChat Overview and Summary

In the matter of *Prantage and Prantage*, Bennett J of the Family Court of Australia considered an application by the father. The precise nature of the dispute is not detailed, but the orders indicate it concerned parenting orders under the *Family Law Act 1975* (Cth).

The central legal issue before the Court was whether the father should be restrained from instituting further proceedings for parenting orders without leave. This involved an assessment of the father's conduct in prior proceedings and the potential for vexatious or unmeritorious litigation.

Bennett J dismissed the father's application and, pursuant to section 118(1)(c) of the *Family Law Act 1975*, made an order restraining the father from instituting future proceedings for parenting orders without the leave of the Court. This type of order is typically made where a party has a history of bringing unmeritorious or vexatious applications. The Court also made orders regarding the payment of costs, including the costs of a medical expert's attendance.

Orders

Orders of the court

The father’s application filed 27 December 2012 be and is hereby dismissed.

Pursuant to section 118(1)(c) of the Family Law Act 1975 the applicant father be restrained from instituting proceedings under the Family Law Act for parenting orders without leave of the Court.

Any party wishing to make an application for costs in this proceeding do so by written submission filed and served not later than 14 days hence and any party against whom costs are sought file and serve any submissions in response in writing within 14 days of service upon them of the other party’s submissions.

The submissions as to costs are to be not longer than four single sided pages of double spaced text in a font not smaller than 13 point.

The father pay the costs of the attendance by Dr NZ at court in May 2013 to give evidence fixed in the sum of $1,800 unless otherwise agreed.

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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