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Yuen & Ainsworth (No 2)

Yuen & Ainsworth (No 2)

Case [2023] FedCFamC1F 294 20 April 2023

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FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Yuen & Ainsworth (No 2) [2023] FedCFamC1F 294

File number(s): BRC 170 of 2021

Judgment of: JARRETT J

Date of judgment: 20 April 2023

Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Application for vexatious proceedings order – Finding that the applicant has instituted vexatious proceedings on five occasions – Where the applicant resisted the making of a vexatious proceedings order in similar conduct to her previous vexatious proceedings – Consideration of principles of vexatious proceedings orders – Vexatious proceedings order made

Legislation:
Evidence Act 1995 (Cth) s 140

Family Law Act 1975 (Cth) ss 60CC, 102Q, 102QB

Vexatious Proceedings Act 2005 (Qld)

Vexatious Proceedings Act 2008 (NSW)

Cases cited:
Ainsworth & Yuen (No 2) [2020] FCCA 2214

Ainsworth & Yuen (No 3) [2020] FCCA 3192

Aldridge v Keaton [2009] FamCAFC 229

Briginshaw v Briginshaw (1939) 60 CLR 336

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

Pencious v Searle [2017] FamCAFC 210

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

Rice & Asplund [1978] FamCA 84

Trahn & Long (No 2) [2008] FamCAFC 194

Yuen & Ainsworth [2021] FamCAFC 86

Yuen & Ainsworth [2022] FedCFamC1F 1025

Division: Division 1 First Instance

Number of paragraphs: 105

Date of last submission/s: 9 February 2023

Date of hearing: 20 December 2022

Place: Brisbane

Solicitor for the Applicant: Litigant in person (by written submission)

Solicitor for the Respondent: Litigant in person (by written submission)

ORDERS

BRC 170 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MS YUEN

Applicant

AND:
MR AINSWORTH

Respondent

order made by:

JARRETT J

DATE OF ORDER:

20 April 2023

THE COURT ORDERS THAT:
1.Paragraph 2 of the response to an initiating application filed on 3 February, 2021 be dismissed.
2.Pursuant to s 102QB(2) of the Family Law Act 1975 (Cth) Ms Yuen is prohibited from instituting proceedings against Mr Ainsworth under the Family Law Act 1975 (Cth) in a court having jurisdiction under that Act.
3.Otherwise all outstanding applications are dismissed.

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 the pseudonym Yuen & Ainsworth has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JARRETT J:

On 20 December, 2022 I delivered judgment in these proceedings dismissing Ms Yuen’s application filed on 7 January, 2021…

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 Yuen & Ainsworth (No 2)

Details

AGLC: Yuen & Ainsworth (No 2) [2023] FedCFamC1F 294
Case: [2023] FedCFamC1F 294
Decision Date

CaseChat Overview and Summary

The Federal Circuit and Family Court of Australia (Division 1) considered an application under section 102QB of the Family Law Act 1975 (Cth) seeking to prohibit Ms Yuen from instituting further proceedings against Mr Ainsworth without leave of the court. The court found that Ms Yuen had frequently instituted vexatious proceedings and made a vexatious proceedings order against her. The court dismissed an application to declare Mr Ainsworth a vexatious litigant, as no proper application had been made and he had not been given an opportunity to be heard. The court held that Ms Yuen had instituted vexatious proceedings on five occasions within the last three years, including proceedings that lacked reasonable grounds, were an abuse of process, were instituted or pursued without reasonable ground, or were conducted in a manner so as to harass or annoy, cause delay or detriment, or achieve another wrongful purpose. The court exercised its discretion to make a vexatious proceedings order, considering the need to protect Mr Ainsworth and the court from continued expense and the risk of further unmeritorious proceedings by Ms Yuen.

The court's decision was based on a detailed examination of the various proceedings instituted by Ms Yuen, including her response to the initiating application, domestic violence order application, appeals, and other applications. The court found that Ms Yuen's conduct in these proceedings demonstrated a pattern of vexatious behaviour, including making serious allegations without evidentiary support, attempting to relitigate issues already decided by the court, and failing to accept the final orders made in 2020. The court also considered the principles applicable to vexatious proceedings orders, including the need for objective determination, the protective purpose of the order, and the relevance of the litigant's conduct in their general affairs.

Orders