Sinclair-Small & Sinclair

[2008] FamCA 1056

FAMILY COURT OF AUSTRALIA

SINCLAIR-SMALL & SINCLAIR [2008] FamCA 1056

FAMILY LAW – PRACTICE AND PROCEDURE – mother seeks dismissal of the father’s application and that the father be injuncted from instituting further proceedings without leave of the Court pursuant to s 118 – whether proceedings are frivolous or vexatious – history of proceedings – application of Rice v Asplund (1979) FLC 90-725 – not appropriate to dismiss final proceedings – not in position to make orders pursuant to s 118 – application dismissed

Family Law Act 1975 (Cth) s 118

Rice v Asplund (1979) FLC 90-725
Oscar and Traynor [2008] FamCAFC 158
Re Attorney‑General (Cth); Ex parte Skyring (1996) 135 ALR 29

APPLICANT: Mr Sinclair-Small

RESPONDENT: Ms Sinclair

FILE NUMBER: ADF 1004 of 2000

DATE DELIVERED: 19 November 2008

PLACE DELIVERED: Adelaide

JUDGMENT OF: Dawe J

HEARING DATE: 19 November 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr R. Ellis

SOLICITOR FOR THE APPLICANT: Robert Ellis

COUNSEL FOR THE RESPONDENT: Mr B.W. McQuade

SOLICITOR FOR THE RESPONDENT: Ann Josephson Lawyers

Orders

1. I dismiss the mother's application in a case in relation to section 118.

2. The mother is not proceeding with the application in relation to past costs and dismiss that application.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADF 1004 of 2000

MR SINCLAIR-SMALL

Applicant

And

MS SINCLAIR

Respondent

EX-TEMPORE REASONS FOR JUDGMENT

1. The proceedings before me today are proceedings concerning the two children of the parties.  However, the matters which were listed before me for determination today are interim applications, being the interim application of the father filed in June 2008 seeking interim orders in very similar terms to the final orders that he sought in relation to spending time with the children and other ancillary matters.

2. Significantly, the matter which needs to be determined first is the application of the mother in a response filed in September 2008, in which the mother seeks orders that the father's application be dismissed, that he pay the costs and that, pursuant to section 118 of the Family Law Act, the father be injuncted from instituting any proceedings in any Court having jurisdiction under the Family Law Act without leave of the Court.

3. The provisions of section 118 specifically require that:

   (1)The Court may, at any stage of proceedings under this Act, if it is satisfied that the proceedings are frivolous or vexatious:

   (a)   dismiss the proceedings;

   (b)  make such order as to costs as the Court considers just; and

   (c)  if the Court considers appropriate, on the application of a party to the proceedings, order that the person who instituted the proceedings shall not, without leave of a Court having jurisdiction under this Act, institute proceedings under this Act of the kind or kinds specified in the order;

   and an order made by a Court under paragraph (c) has effect notwithstanding any other provision…