Vanetti & Harrison (No 3) - [2023] FedCFamC1F 698

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Vanetti & Harrison (No 3) [2023] FedCFamC1F 698

File number(s): MLC 11706 of 2019

Judgment of: BENNETT J

Date of judgment: 10 August 2023

Catchwords:
FAMILY LAW- PRACTICE & PROCEDURE – where self-represented litigant files enforcement application in respect of a parenting order under Chapter 11.2 of the Rules – where enforcement application does not seek to enforce the sole parental responsibility order recently granted in favour of the other party but seeks to direct the parent with sole parental responsibility as to how to exercise parental responsibility – where application is misconceived – where enforcement application is dismissed.

FAMILY LAW- PRACTICE & PROCEDURE –where the fifth principle for conducting child related proceedings is that proceedings are to be completed without undue delay and with as little formality and legal technicality as possible – where, in spite of the defective application, the court considered the applicant’s underlying grievance.

FAMILY LAW- PRACTICE & PROCEDURE – where unsuccessful party cautioned about possibility of a vexatious proceedings order if vexatious proceedings are instituted in the future.

Legislation: Family Law Act 1975 (Cth) s 102Q

Division: Division 1 First Instance

Number of paragraphs: 31

Date of hearing: 10 August 2023

Place: Parramatta (via MS Teams)

Counsel for the Applicant: Litigant in person

Solicitor for the Respondent: Melbourne Family Lawyers
ORDERS

MLC 11706 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MS VANETTI

Applicant

AND:
MR HARRISON

Respondent

ORDER MADE BY:

BENNETT J

DATE OF ORDER:

10 AUGUST 2023

THE COURT ORDERS THAT:
1.The Application – Enforcement of the mother filed 30 July 2023 be and is hereby dismissed.
2.My reasons for decision be transcribed and, when settled, be placed on the Court file and a copy provided to the parties.

AND IT IS NOTED that there was no appearance by or on behalf of the independent children’s lawyer who is not funded for these proceedings.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Vanetti & Harrison has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
EX TEMPORE
BENNETT J:

This matter comes before me on the mother’s application titled, “Application – Enforcement,” filed 30 July 2023 and in a form prescribed under Chapter 11 of the Federal Circuit and Family…

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 Vanetti & Harrison (No 3)

Details

AGLC: Vanetti & Harrison (No 3) [2023] FedCFamC1F 698
Case: [2023] FedCFamC1F 698
Decision Date

CaseChat Overview and Summary

The matter of Vanetti and Harrison was heard in the Federal Circuit and Family Court of Australia, Division 1. The applicant, Ms Vanetti, filed an enforcement application under Chapter 11.2 of the Rules, seeking to direct the respondent, Mr Harrison, on how to exercise his sole parental responsibility in relation to their child's health. The court had to determine whether the enforcement application was misconceived and, if so, whether the mother's underlying grievance should be addressed.

The court found that the enforcement application was misconceived because it did not seek to enforce the sole parental responsibility order but rather to dictate how the father should exercise his responsibility. The court also considered the mother's grievance that the father had delayed in arranging a medical test for the child. The court acknowledged the mother's concern but found that the father's decision to seek a shorter test, as the mother refused to cooperate in the testing process, was reasonable. The court also cautioned the mother about the potential for a vexatious proceedings order if similar misconceived applications were made in the future.

The court dismissed the enforcement application and noted that there was no application for costs. The father's solicitor informed the court that no professional fees would be charged for the appearance. The court also cautioned the mother about the potential for a vexatious proceedings order if similar misconceived applications were made in the future.

The court made an order dismissing the enforcement application and requested that the reasons for the decision be transcribed and placed on the court file, with a copy provided to the parties. The court also noted that the independent children's lawyer had not participated in the hearing, and that the mother's address for service would be noted in the court files as her current residential address.

Orders