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VERBOOM & VERBOOM

VERBOOM & VERBOOM

Case [2019] FCCA 3941 31 October 2019

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FEDERAL CIRCUIT COURT OF AUSTRALIA

VERBOOM & VERBOOM

[2019] FCCA 3941

Catchwords:
FAMILY LAW – Parenting – application to terminate proceedings in their entirety – application to determine and dismiss proceedings on their merit – application for summary dismissal – extensive history of proceedings – consideration of the “rule” in Rice & Asplund - no change in circumstances that would warrant a reopening of these proceedings - assessing the level of risk that a further reopening of litigation would represent – where Application does not raise any fresh judiciable controversy – substantial history of family violence – where orders sought by Applicant are inconsistent with family violence order in place between the parties – where evidence suggested to support and warrant reopening of proceedings is scant and unsatisfactory.

COSTS – Application for costs on an indemnity basis – where party seeking costs is in receipt of Legal Aid – where Application before the Court in the substantive proceedings is poorly framed and ill-conceived – where Applicant in the substantive proceedings has been wholly unsuccessful – where amount of costs sought is less than the indicative scale of costs in Schedule 1.

Legislation:

Family Law Act 1975 (Cth), ss.45A, 60CA, 68P, 102NA, 102QB, 117

Federal Circuit Court Rules2001 (Cth), Div 1; Sch 1

Cases cited:

Rice & Asplund (1979) FLC 90-725

Taffa & Taffa [2012] FamCA 181
Hunter & Morrison (Summary Dismissal)[2014] FamCA 199
Yim & Anor & Zieth [2018] FCCA 3797
Webster & Lampard [1993] HCA 57
Lindon & Commonwealth (No. 2) (1996) 136 ALR 251
SPS & PLS (2008) FLC 93-363
Gordon & Gordon [2015] FamCA 616
Prantage & Prantage [2013] FamCAFC 105

Penfold v Penfold [1980] HCA 4

Re JJT & Ors; Ex Parte Victoria Legal Aid [1998] FLC 92-812
Browne & Green [2002] FamCA 791

Other sources:
Convention on the Rights of the Child, opened for signature 20 November 1989, 1577 UNTS 3 (entered into force 2 September 1990)

Applicant:

MR VERBOOM

Respondent:

MS VERBOOM

File Number:

CAC 2136 of 2016

Judgment of:

Judge Harman

Hearing date:

31 October 2019

Date of Last Submission:

31 October 2019

Delivered at:

Canberra

Delivered on:

31 October 2019

REPRESENTATION

Solicitors for the Applicant:

Ms J. Zankin of Infinity Legal

The Respondent appeared in person

ORDERS

I dismiss all outstanding Applications and Responses.
Mr Verboom shall, within 28 days of this order, pay to Ms Verboom or the Legal Aid Commission ACT, the sum of $2,681.20 as a contribution to Ms Verboom’s costs of and incidental to these proceedings.
In the event the above sum is not paid within 28 days of today’s date then:
(a)Interest shall accrue upon that sum at the rate prescribed by the Federal Circuit Court Rules 2001 from time to time; and
(b)Ms Verboom or the Legal Aid Commission ACT shall be entitled to commence proceedings for recovery of that sum together with interest and cost of enforcement.

IT IS NOTED that publication of this judgment under the pseudonym Verboom & Verboom is approved…

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 VERBOOM & VERBOOM

Details

AGLC: VERBOOM & VERBOOM [2019] FCCA 3941
Case: [2019] FCCA 3941
Decision Date: 31 October 2019

CaseChat Overview and Summary

In the matter of *Verboom & Verboom*, Harman J considered applications by Mr Verboom to terminate proceedings entirely, determine and dismiss them on their merits, and for summary dismissal. The proceedings had an extensive history, including a substantial history of family violence. Ms Verboom was represented by Legal Aid ACT.

The primary legal issues before the court were whether the proceedings should be terminated or summarily dismissed, and whether the "rule" in *Rice & Asplund* applied, preventing a reopening of the proceedings due to a lack of change in circumstances. The court also considered an application for costs on an indemnity basis, given that the applicant in the substantive proceedings had been wholly unsuccessful and their application was described as poorly framed and ill-conceived.

Harman J dismissed Mr Verboom's applications, finding that there was no change in circumstances that would warrant a reopening of the proceedings. The court assessed the level of risk that a further reopening of litigation would represent and concluded that the application did not raise any fresh judiciable controversy. Furthermore, the orders sought by Mr Verboom were inconsistent with an existing family violence order, and the evidence suggested to support reopening the proceedings was scant and unsatisfactory.

Consequently, Harman J ordered the dismissal of all outstanding applications and responses. Mr Verboom was ordered to pay $2,681.20 towards Ms Verboom's costs, with provision for interest and enforcement proceedings in the event of non-payment.

Orders

Orders of the court

ORDERS

1. I dismiss all outstanding Applications and Responses.

2. Mr Verboom shall, within 28 days of this order, pay to Ms Verboom or the Legal Aid Commission ACT, the sum of $2,681.20 as a contribution to Ms Verboom’s costs of and incidental to these proceedings.

3. In the event the above sum is not paid within 28 days of today’s date then:

3. (a) Interest shall accrue upon that sum at the rate prescribed by the Federal Circuit Court Rules 2001 from time to time; and

3. (b) Ms Verboom or the Legal Aid Commission ACT shall be entitled to commence proceedings for recovery of that sum together with interest and cost of enforcement.

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

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

VERBOOM & VERBOOM [2019] FCCA 3941

Cases citing this decision · 0 of 0 shown

No citing cases yet.

Cases cited in this decision · 14 of 14 shown

Yim and Anor and Zieth
[2018] FCCA 3797 Para 1

…rporate from the decision of Tree J, that set out by him at paragraph 4, wherein his Honour observes: [1] [2012] FamCA 181. [2] [2014] FamCA 199. [3] [2018] FCCA 3797. a)The power for summary relief is a discretionary one. b)Relief “is rarely and sparingly provided” c)The parties seeking summary dismissal must show…
Gordon & Gordon
[2015] FamCA 616 Para 12

…In that regard, I am conscious of that which fell from Forrest J in Gordon & Gordon [2015] FamCA 616, and I incorporate paragraphs 3 to 5 thereof. 3.Of course, any reader of these reasons might immediately protest that making such an Order offends fundamental cornerstones of our system of administration of justice,…
Hunter and Morrison (Summary Dismissal)
[2014] FamCA 199 Para 1

…3] To that end, I incorporate from the decision of Tree J, that set out by him at paragraph 4, wherein his Honour observes: [1] [2012] FamCA 181. [2] [2014] FamCA 199. [3] [2018] FCCA 3797. a)The power for summary relief is a discretionary one. b)Relief “is rarely and sparingly provided” c)The parties seeking summa…
Prantage & Prantage
[2013] FamCAFC 105 Para 31

…ght be suggested that the Application is thus sought and pressed on an indemnity basis, thus invoking the principles discussed in Prantage & Prantage [2013] FamCAFC 105, I make clear that: a)All costs on a party/party basis would appear to be sought. The quantum is purely by reference to that, in fact, expended by th…
Taffa & Taffa (Summary Dismissal)
[2012] FamCA 181 Para 1

…n Yim & Anor & Zieth.[3] To that end, I incorporate from the decision of Tree J, that set out by him at paragraph 4, wherein his Honour observes: [1] [2012] FamCA 181. [2] [2014] FamCA 199. [3] [2018] FCCA 3797. a)The power for summary relief is a discretionary one. b)Relief “is rarely and sparingly provided” c)The…
Browne v Green
[2002] FamCA 791 Para 1

…be considered (if necessary utilising subsection (g)) is both relative success and lack of success of each party. [9] See for example Browne & Green [2002] FamCA 791.…
Lindon v Commonwealth of Australia
[1996] HCATrans 165 Para 2

…and incorporating discussion of Webster & Lampard[4] in the High Court’s decisions in Lindon & The Commonwealth (No 2) .[5] [4] [1993] HCA 57. [5] (1996) 136 ALR 251.…
Webster v Lampard
[1993] HCA 57 Para 2

…graph 32 of Taffa , and incorporating discussion of Webster & Lampard[4] in the High Court’s decisions in Lindon & The Commonwealth (No 2) .[5] [4] [1993] HCA 57. [5] (1996) 136 ALR 251.…
Zabaneh & Zabaneh
[1986] FamCA 18 Para 3

…in In the Marriage of Zabaneh [1986] FamCA 18 ; (1986) FLC 91-766 at 75,587 (Fogarty and Renaud JJ agreeing): The welfare of children may ultimately demand that issues concerning access, custody and so forth, and so on, be reconsidered, but only when there is some evidence of an underlying change in the circumstan…
Penfold v Penfold
[1980] HCA 4 Para 33

…the Court may, if the dual tests of justice and justification, (see Re JJT & Ors; Ex Parte Victoria Legal Aid [1998] FLC 92-812 ) , are met. [8] [1980] HCA 4.…
Rice & Asplund
[1978] FamCA 84 Para 1

…were), in SPS & PLS .[6] His Honour’s judgment commences at paragraph 1 with the following: The “rule” in In the Marriage of Rice and Asplund [1978] FamCA 84 ; (1979) FLC 90-725 - (at least, in one of its shorter formulations) that, where there has already been a final order in respect of parenting issues, before…
In the Marriage of McEnearney
[1980] FAMCA 43 Para 3

…sequent hearings and the imposition of them on court time. 57.In In the Marriage of McEnearney [1980] FamCA 43 ; (1980) FLC 90-866 , Nygh J moved beyond the general position of public interest in the finality of all litigation, to purposes more specific to family law. He said (at 75,499): ...the principle that the…
[1987] FAMCA 21
[1987] FAMCA 21 Para 3

…In the Marriage of Newling and Mole [1987] FamCA 21 ; (1987) FLC 91-856 at 76,467: Since the principle that the welfare of the child is the paramount consideration applies in all matters affecting children, it is, in my view, not appropriate to speak of cause of estoppel. What this rule really illustrates is that…
In the Marriage of F and N
[1987] FAMCA 40 Para 3

…lows is a full hearing of a “custody” dispute. 66.In the Marriage of F and N [1987] FamCA 40 ; (1987) FLC 91-813 Nygh J, with whom Evatt CJ and Burton J agreed, said at 76,137: Rice and Asplund in fact makes the point that this court should be reluctant in assuming jurisdiction too soon after there has been a full…

Legislation cited in this decision · 2

Family Law Act 1975 (Cth)
102NA, 102QB, 117, 45A, 60CA, 68P 7 mentions (from Para 1)
Federal Circuit Court Rules 2001 (Cth)
1 mention (from Para 3)