FAMILY COURT OF AUSTRALIA
| SEARLE & PENCIOUS | [2016] FamCA 135 |
| FAMILY LAW – PRACTICE & PROCEDURE – Application by the wife for a vexatious proceedings order pursuant to s 102QB of the Family Law Act 1975 (Cth) – where the husband has frequently instituted vexatious proceedings in this Court and other courts and tribunals – where the proceedings have a long history – final orders made prohibiting the husband from instituting proceedings without first obtaining leave of the Court |
Family Law Act 1975 (Cth), s 102QB
Vexatious Proceedings Act 2008 (NSW)
Family Law Rules 2004 (Cth)
Attorney-General (NSW) v Gargan [2010] NSWSC 1192
Cannon & Acres [2014] FamCA 104
Marsden & Winch (2013) FLC 93-560; [2013] FamCAFC 177
Pencious & Pencious [2010] FamCA 605
Pencious & Pencious [2012] FamCA 74
Pencious & Pencious (No 2) [2012] FamCA 212
Pencious & Pencious (No 2) [2013] FamCA 748
Pencious & Searle (2015) FLC 93-627; [2015] FamCAFC 2
Pencious & Searle [2015] FamCA 504
Pencious & Searle (No 2) [2015] FamCA 608
Pencious & Searle (No 2) [2015] FamCAFC 112
Pencious & Searle and Ors [2016] FamCAFC 27
Searle (formerly Pencious) & Pencious and Anor [2013] FamCA 375
Searle & Pencious [2013] FamCA 756
Searle Pty Ltd & Pencious and Ors [2013] FamCA 717
| APPLICANT: | Ms Searle |
| RESPONDENT: | Mr Pencious |
| FILE NUMBER: | MLC | 11069 | of | 2008 |
| DATE DELIVERED: | 7 March 2016 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Macmillan J |
| HEARING DATE: | 22 May, 20 August and 8 October 2015 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Wood |
| SOLICITOR FOR THE APPLICANT: | Tasiopoulos Lambros & Co |
| THE RESPONDENT: | In person |
Orders
IT IS ORDERED THAT:
Pursuant to s 102QB(2)(b) of the Family Law Act 1975 (Cth) (“the Act”) the respondent husband, Mr Pencious, be prohibited from instituting proceedings under the Act in any court having jurisdiction under the Act without first having been granted leave to commence that proceeding pursuant to s 102QE of the Act.
Paragraphs 1, 2, 3, 4, 5, 7 and 8 of the husband’s Application in a Case filed 24 March 2015 and paragraphs 2, 3, 4, 5, 7, 8 and 9 of the wife’s Application in a Case filed 24 April 2015 be adjourned for further hearing in the Judicial Duty List at 10.00 am on 3 May 2016.
The question of costs arising out of or incidental to the wife’s application for a vexatious proceedings order be reserved for determination.
On or before 4.00 pm on 28 March 2016 the parties file and serve any written submissions in support of any application for costs arising out of or incidental to the wife’s application for a vexatious proceedings order.
On or before 4.00 pm on 11 April 2016 the parties file and serve any reply to any written submissions in support of any application for costs arising out of or incidental to the wife’s application for a vexatious proceedings order.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Searle& Pencious
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- AGLC
- Searle & Pencious [2016] FamCA 135
- Case
- [2016] FamCA 135
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the court was whether the husband's past conduct warranted the imposition of a vexatious proceedings order under section 102QB(2)(b) of the Act. This involved assessing whether the husband had, in the court's view, instituted vexatious proceedings.
Macmillan J reasoned that the husband's history of litigation demonstrated a pattern of vexatious conduct, justifying the imposition of a prohibition order. The court applied the principles governing vexatious proceedings orders, focusing on the repetitive and unmeritorious nature of the husband's applications. Consequently, the court ordered that the husband be prohibited from instituting proceedings under the Act without first obtaining leave pursuant to section 102QE. The court also adjourned certain paragraphs of the parties' applications for further hearing and reserved the question of costs associated with the wife's application for a vexatious proceedings order, directing the parties to file written submissions on this issue.
Orders
Orders of the court
IT IS ORDERED THAT:
1.
Pursuant to s 102QB(2)(b) of the Family Law Act 1975 (Cth) (“the Act”) the respondent husband, Mr Pencious, be prohibited from instituting proceedings under the Act in any court having jurisdiction under the Act without first having been granted leave to commence that proceeding pursuant to s 102QE of the Act.
2.
Paragraphs 1, 2, 3, 4, 5, 7 and 8 of the husband’s Application in a Case filed 24 March 2015 and paragraphs 2, 3, 4, 5, 7, 8 and 9 of the wife’s Application in a Case filed 24 April 2015 be adjourned for further hearing in the Judicial Duty List at 10.00 am on 3 May 2016.
3.
The question of costs arising out of or incidental to the wife’s application for a vexatious proceedings order be reserved for determination.
4.
On or before 4.00 pm on 28 March 2016 the parties file and serve any written submissions in support of any application for costs arising out of or incidental to the wife’s application for a vexatious proceedings order.
5.
On or before 4.00 pm on 11 April 2016 the parties file and serve any reply to any written submissions in support of any application for costs arising out of or incidental to the wife’s application for a vexatious proceedings order.
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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