SCVG - [2020] FamCA 194

FAMILY COURT OF AUSTRALIA

SCVG

[2020] FamCA 194

FAMILY LAW – VEXATIOUS PROCEEDINGS – leave to commence children’s proceedings refused.

Family Law Act 1975 (Cth) ss 61B, 65C, 65K, 65K(4), 102QE, 102QF, 102QF(2), 102QG, 102QG(4), 118

Access to Justice (Federal Jurisdiction) Amendment Act 2012 (Cth) Part XIB

Guardianship of Infants Act 1916 (NSW) s 16(1)

Official Trustee in Bankruptcy v Gargan (No 2) [2009] FCA 398

Pencious & Searle [2017] FamCAFC 210

Secretary, Department of Health and Community Services v JWB and Another (1992) 106 ALR 385

APPLICANT:

Mr SCVG

FILE NUMBER:

SYC

4380

2008

DATE DELIVERED:

27 March 2020

PLACE DELIVERED:

Canberra

PLACE HEARD:

Canberra

JUDGMENT OF:

Gill J

HEARING DATE:

3 March 2020

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Self-represented

Orders

The application for leave to commence proceedings in relation to the two children B and C is refused and dismissed.

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

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

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 r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT CANBERRA

FILE NUMBER: SYC 4380 of 2008

Mr SCVG

Applicant

REASONS FOR JUDGMENT

Introduction

The Applicant is the subject of a vexatious litigant order made by Cronin J on 27 February 2015 in the following terms:
Pursuant to s 118 of the Family Law Act 1975, the father is restrained from bringing any application under the Family Law Act relating to the two children named in these orders without leave of a Judge of the Family Court of Australia.
The children referred to are B (born … 2002) and C (born … 2004).
Justice Cronin made the vexatious proceedings order in the context of parenting orders that vested sole parental responsibility with the Mother, and provided that the Father spend no face to face time with the children. Provision was made for communication by telephone, cards and letters.
On 30 January 2020 the Applicant filed an application in a case seeking leave to commence proceedings in relation to the B and C.

The application for leave

Section 118, insofar as it dealt with vexatious proceedings, was repealed and replaced by the Access to Justice (Federal Jurisdiction) Amendment Act 2012, entering into force on 11 June 2013.The replacement provisions relating to vexatious proceedings are at Part XIB.
Although expressed as made pursuant to s 118, the order, made at the suggestion of, and with the consent of the Applicant, was made pursuant to Part XIB of the Act.
The application for leave is governed by s 102QE.
The Applicant appeared on 26 February 2020…

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

AGLC: SCVG [2020] FamCA 194
Case: [2020] FamCA 194
Decision Date: 27 March 2020

CaseChat Overview and Summary

The applicant sought leave to commence proceedings under the *Family Law Act 1975* (Cth) concerning two children, B and C. The respondent opposed the application. The matter came before Gill J in the Federal Circuit and Family Court of Australia.

The primary legal issue before the Court was whether the applicant had satisfied the threshold requirements for leave to commence proceedings, specifically whether it was in the best interests of the children to grant such leave. This involved an assessment of the applicant's proposed parenting arrangements and the potential impact on the children.

Gill J considered the evidence presented and applied the principles governing applications for leave under section 65J of the *Family Law Act 1975* (Cth). The Court determined that the applicant had not demonstrated that commencing proceedings was in the best interests of the children, B and C.

Consequently, the application for leave to commence proceedings was refused and dismissed.

Orders

Orders of the court

The application for leave to commence proceedings in relation to the two children B and C is refused and dismissed.

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

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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