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SPENCER and SPENCER

SPENCER and SPENCER

Case [2018] FCWA 249 13 December 2018

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JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA
ACT: FAMILY LAW ACT 1975
LOCATION: PERTH
CITATION: SPENCER and SPENCER [2018] FCWA 249
CORAM: SUTHERLAND J
HEARD: 1 AUGUST 2018
DELIVERED : 13 DECEMBER 2018
FILE NO/S: PTW 7180 of 2010
BETWEEN: MS SPENCER
Applicant
AND
MR SPENCER
Respondent

Catchwords:

PRACTICE AND PROCEDURE - Where vexatious litigant seeking leave to commence new proceedings - Proposed proceedings an abuse of process and no merit in proposed claim - Leave not granted

Legislation:

Family Law Act 1975 (Cth)

Category: Not Reportable

Representation:

Counsel:

Applicant	:	Self Represented Litigant
Respondent	:	Not required at hearing

Solicitors:

Applicant	:	Self Represented Litigant
Respondent	:	Not required at hearing

Case(s) referred to in decision(s):

Acres & Cannon (No 3) [2016] FamCA 795
Cannon & Acres [2014] FamCA 104
Finch [2017] FamCA 201
Official Trustee in Bankruptcy v Gargan (No 2) [2009] FCA 398
Ongal & Materns [2017] FamCA 143
Pencious & Searle (2017) FLC 93-805
Pencious & Searle [2017] FamCA 1004
Re Garret [2016] FCA 703

WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT – PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED

IT IS NOTED that publication of this judgment by this Court under the pseudonym Spencer and Spencer has been approved by the Family Court of Western Australia pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Introduction

1The mother sought leave to institute parenting proceedings pursuant to s 102QE of the Family Law Act 1975 (Cth) (“the Act”) in relation to her only son, [H], born [in] 2008.[1] If leave were granted, then the mother effectively sought to file a Form 1 application and the precise orders she sought were as follows:
[1] Refer to the mother's Form 2 Application filed 3 February 2017 and her Form 2 Application filed 31 July 2017. Those applications each contained a “Proposed Form 2 Application” setting out the orders sought in the event that she was granted leave pursuant to s102QE of the Act. The mother's Form 2 Application filed 3 July 2017 essentially superseded the Form 2 Application filed 3 February 2017 as it contained an amended "Proposed Form 2 Application" which was a photocopy of the "Proposed Form 2 Application" that the mother's had sought leave to file in her Form 2 Application filed 3 February 2017, with one additional order handwritten in.
1. This Application be heard with the current proceedings.
2. Full residency and responsibility for [H] be returned to myself (mother/applicant).
3. [H]’s passport to be delivered to the court by the Respondent father to be held by the court until the proceedings are finished.
4. All possessions of [H] to be returned to the Applicant/Mother within 10 days.
5. The Respondent (and any other person) knowingly involved in the removal of the child from Australia be restrained by injunction from any contact with the child until further order of the court.
6. The Court refer the Respondent, [and the Applicant’s parents] (and any other person knowingly…

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 SPENCER and SPENCER

Details

AGLC: Spencer and Spencer [2018] FCWA 249
Case: [2018] FCWA 249
Decision Date: 13 DECEMBER 2018

CaseChat Overview and Summary

The plaintiffs, Spencer and Spencer, sought leave to commence new proceedings against the defendant, a legal practitioner, following the dismissal of their previous claims. The court was required to determine whether the plaintiffs had an arguable case and whether granting leave would be an abuse of process. The Spencers argued that their previous claims were wrongfully dismissed and sought to re-litigate the same issues. The court considered whether the proposed proceedings were an abuse of process and whether there was any merit in the claims.

The court held that the plaintiffs' proposed proceedings were an abuse of process and lacked merit. The court noted that the plaintiffs had a history of vexatious litigation and had previously been warned against bringing further proceedings without leave. The court also found that the claims were an attempt to re-litigate issues that had already been decided and that there was no new evidence or argument to support the claims. The court held that granting leave would be an abuse of process and would not serve the interests of justice.

The court refused the plaintiffs leave to commence new proceedings. The court found that the plaintiffs' proposed proceedings were an abuse of process and lacked merit. The court held that the plaintiffs had a history of vexatious litigation and had previously been warned against bringing further proceedings without leave. The court also found that the claims were an attempt to re-litigate issues that had already been decided and that there was no new evidence or argument to support the claims. The court held that granting leave would be an abuse of process and would not serve the interests of justice.

The court made an order that the plaintiffs pay the defendant's costs of the application. The court held that the plaintiffs' application was an abuse of process and that the defendant was entitled to costs. The court also held that the plaintiffs' history of vexatious litigation justified an award of costs on an indemnity basis.

Orders