Xuarez and Vitela (No. 3) - [2017] FamCA 1108

FAMILY COURT OF AUSTRALIA

XUAREZ & VITELA (NO. 3)

[2017] FamCA 1108

FAMILY LAW – PRACTICE AND PROCEDURE – Application by the mother for a vexatious proceedings order pursuant to s 102QB of the Family Law Act1975 (Cth) – Where the father has frequently instituted vexatious proceedings in Australian courts – Where a final vexatious proceedings order is made prohibiting the father from instituting proceedings against the mother and/or her legal representatives under the Family Law Act 1975 (Cth) – Where all extant applications are dismissed.

Family Law Act 1975 (Cth)

Cannon & Acres [2014] FamCA 104
Marsden & Winch (2013) FLC 93-560

Official Trustee in Bankruptcy & Gargan (No 2) [2009] FCA 398

Pencious & Searle [2017] FamCAFC 210

Potier v Attorney General (NSW) (2015) 89 NSWLR 284

Viavattene v Attorney General (NSW) [2015] NSWCA 44

APPLICANT:

Mr Xuarez

RESPONDENT:

Ms Vitela

FILE NUMBER:

BRC

7312

2007

DATE DELIVERED:

22 December 2017

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Carew J

HEARING DATE:

30 November 2017

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Self Represented

COUNSEL FOR THE RESPONDENT:

Ms E

SOLICITOR FOR THE RESPONDENT:

N Firm

orders

That pursuant to s 102QB(2) of the Family Law Act 1975 (Cth) Mr Xuarez be prohibited from instituting proceedings against Ms Vitela or any of her legal representatives (past or present) under this Act in a court having jurisdiction under this Act.
All extant applications are dismissed.

NOTATION

Section 102QE of the Act provides:

Application for leave to institute proceedings

This section applies to a person (the applicant ) who is:
(a)subject to a vexatious proceedings order prohibiting the person from instituting proceedings, or proceedings of a particular type, under this Act in a court having jurisdiction under this Act; or
(b)acting in concert with another person who is subject to an order mentioned in paragraph (a).
The applicant may apply to the court for leave to institute proceedings that are subject to the order.
The applicant must file an affidavit with the application that:
(a)lists all the occasions on which the applicant has applied for leave under this section; and
(b)lists all other proceedings the applicant has instituted in any Australian court or tribunal, including proceedings instituted before the commencement of this section; and
(c)discloses all relevant facts about the application, whether supporting or adverse to the application, that are known to the applicant.
The applicant must not serve a copy of the application or affidavit on a person unless an order is made under paragraph 102QG(1)(a). If the order is made, the applicant must serve the copy in accordance with the order.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Xuarez & Vitela (No. 3) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may…

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 Xuarez and Vitela (No. 3)

Details

AGLC: Xuarez and Vitela (No. 3) [2017] FamCA 1108
Case: [2017] FamCA 1108
Decision Date: 22 December 2017

CaseChat Overview and Summary

In *Xuarez and Vitela (No. 3)*, Carew J of the Family Court of Australia considered an application by Mr Xuarez concerning proceedings with Ms Vitela. The specific nature of the dispute is not detailed, but the court's orders indicate a history of contentious litigation.

The central legal issue before the court was whether Mr Xuarez should be prohibited from instituting further proceedings against Ms Vitela or her legal representatives under the *Family Law Act 1975* (Cth). This question arose in the context of the court's power to manage vexatious litigation, as evidenced by the reference to s 102QB(2) of the Act. The court also had to consider the status of all existing applications filed by Mr Xuarez.

Carew J reasoned that the circumstances warranted the imposition of a prohibition under s 102QB(2) of the *Family Law Act 1975*. This section empowers the court to prevent individuals from commencing further proceedings if their conduct suggests a pattern of vexatious litigation. The court's decision to dismiss all extant applications further underscores its conclusion that the proceedings were not being conducted appropriately. The court also noted the provisions of s 102QE, which outlines the process for individuals subject to such prohibitions to seek leave to institute proceedings, requiring detailed disclosure of past applications and other litigation.

Consequently, the court ordered that Mr Xuarez be prohibited from instituting proceedings against Ms Vitela or any of her legal representatives under the *Family Law Act 1975* in a court with jurisdiction under that Act. All existing applications filed by Mr Xuarez were dismissed.

Orders

Orders of the court

That pursuant to s 102QB(2) of the Family Law Act 1975 (Cth) Mr Xuarez be prohibited from instituting proceedings against Ms Vitela or any of her legal representatives (past or present) under this Act in a court having jurisdiction under this Act.

All extant applications are dismissed.

NOTATION

Section 102QE of the Act provides:

Application for leave to institute proceedings

This section applies to a person (the applicant ) who is:

(a) subject to a vexatious proceedings order prohibiting the person from instituting proceedings, or proceedings of a particular type, under this Act in a court having jurisdiction under this Act; or

(b) acting in concert with another person who is subject to an order mentioned in paragraph (a).

The applicant may apply to the court for leave to institute proceedings that are subject to the order.

The applicant must file an affidavit with the application that:

(a) lists all the occasions on which the applicant has applied for leave under this section; and

(b) lists all other proceedings the applicant has instituted in any Australian court or tribunal, including proceedings instituted before the commencement of this section; and

(c) discloses all relevant facts about the application, whether supporting or adverse to the application, that are known to the applicant.

The applicant must not serve a copy of the application or affidavit on a person unless an order is made under paragraph 102QG(1)(a). If the order is made, the applicant must serve the copy in accordance with the order.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

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Ratio Decidendi

Legal Principle Established

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