FAMILY LAW CASE NOTES
“ … [A] decision about whether to accept the application in this case … was an administrative decision. It was not a judicial decision. ( … ) That decision is not amenable to review using the mechanism provided for in s 104(2) and FCCR 20.02 …” The Court directed the parties to file submissions as to whether the Registrar’s decision should be set aside pursuant to the Administrative Decisions (Judicial Review) Act 1977.
CHILDREN – VEXATIOUS LITIGANT’S LEAVE APPLICATION FAILS – PRIMARY MOTIVATION IN SEEKING PARENTAL RESPONSIBILITY TO CHALLENGE DECEASED MOTHER’S WILL In SCVG [2020] FamCAFC 147 (12 June, 2020) the Full Court (Strickland, Ainslie-Wallace & Austin JJ) dismissed an appeal in a case where a vexatious proceedings order had been made in 2015 prohibiting the father of two children from instituting proceedings. The mother had since died, the father seeking leave to file fresh parenting proceedings in 2020 where the mother had appointed
her siblings as the children’s guardians. The father sought parental responsibility orders, contending that such orders would enable him to challenge the mother’s will on behalf of the children ([40]). The Full Court said (from [32]): “The application must be dismissed if the intended proceedings are vexatious proceedings (s 102QF(2)). Alternatively, leave may be granted only if satisfied that the proceedings are not vexatious proceedings (s 102QG(4)). The applicant bears the burden of proving the intended proceedings are not vexatious. (…) [42] From the applicant’s evidence it is manifest that his principal objective is to bring the proceedings …, to obtain parental responsibility … for the collateral purpose of facilitating his prosecution of separate testamentary proceedings in a different jurisdiction … (…) [44] It is accepted as being plainly abusive of civil process to institute proceedings for an improper purpose … which include the use of the proceedings for the predominant or substantial
3 JUL 2020 – 2 AUG 2020 ACTS PROCLAIMED Labour Hire Licensing (Miscellaneous) Amendment Act 2020 (No 18 of 2020) Commencement: 20 July 2020 Gazetted: 16 July 2020, Gazette No. 59 of 2020 Gambling Administration Act 2019 (No 42 of 2019) Commencement: 3 December 2020 Gazetted: 30 July 2020, Gazette No. 65 of 2020 Statutes Amendment (Gambling Regulation) Act 2019 (No 44 of 2019) Commencement s56(1) insofar as it inserts ss 42B(3) and (3b) into Casino Act 1997; s56(2): 28 September 2020 Commencement Part 2; ss 41(1) to (7); 41(9), but only insofar as it deletes the definition of statutory default from s 3(1) of Casino Act 1997; 42; 44; 49; 50; 52, but only insofar as it inserts ss 40B and 40C into Casino Act 1997; 54; 55; 56(1), but only insofar as it inserts s 42B(3a) into Casino Act 1997; 57; 62; 63; 66; 67; 70 104; 106, but only insofar as it inserts ss 40A, 40B and 40C into Gaming Machines
36 THE BULLETIN September 2020
purpose of obtaining some collateral advantage rather than for the purpose for which the proceedings are designed and exist (Williams v Spautz [1992] HCA 34; (1992) 174 CLR 509 at 522, 528–529, 532 and 536–537). [45] In Goldsmith v Sperrings Ltd [1977] 1 WLR 478 at 503 … it was said: ‘ ... [I]f it can be shown that a litigant is pursuing an ulterior purpose unrelated to the subject matter of the litigation and that, but for his ulterior purpose, he would not have commenced proceedings at all, that is an abuse of process ... ’ [46] While the applicant’s immediate purpose in bringing the Part VII litigation is to secure an order vesting him with parental responsibility … being an order within the scope of power wielded by the Family Court of Australia, the applicant admits he has an ulterior motive for pursuing an order in those terms. He called it the ‘decisive’ reason for bringing the proceedings. His pursuit of the Part VII order for the predominant and ulterior motive of prosecuting other civil … converts the intended Part VII proceedings into an abuse of process.” B
A MONTHLY REVIEW OF ACTS, APPOINTMENTS, REGULATIONS AND RULES COMPILED BY MASTER ELIZABETH OLSSON OF THE DISTRICT COURT OF SOUTH AUSTRALIA
Act 1992; 107 – 110; ss 112 - 122; ss 126 - 127; ss 129 - 136; Parts 5 - 7; Sch 1, cl 1;Sch 1, cl 2(2), (5) and (6); Sch 1, cl 3(1) (3) and (5): 3 December 2020 Commencement remaining provisions except s 128: 30 July 2020 Gazetted: 30 July 2020, Gazette No. 65 of 2020
Measures) (No 2) Amendment Act 2020, No. 23 of 2020 Gazetted: 24 July 2020, Gazette No. 61 of 2020
ACTS ASSENTED TO
Statutes Amendment (Electricity and Gas) (Energy Productivity) Act 2020, No. 25 of 2020 Gazetted: 30 July 2020, Gazette No. 65 of 2020
Statutes Amendment (Licence Disqualification) Act 2020, No. 20 of 2020 (amends Motor Vehicles Act 1959 and Road Traffic Act 1961) Gazetted: 9 July 2020, Gazette No. 58 of 2020 First Home and Housing Construction Grants (Miscellaneous) Amendment Act 2020, No. 21 of 2020 Gazetted: 9 July 2020, Gazette No. 58 of 2020 Emergency Management (Quarantine Fees and Penalty) Amendment Act 2020, No. 22 of 2020 Gazetted: 24 July 2020, Gazette No. 61 of 2020 COVID-19 Emergency Response (Further
Waite Trust (Vesting of Land) Act 2020, No. 24 of 2020 Gazetted: 30 July 2020, Gazette No. 65 of 2020
Fair Trading (Fuel Pricing Information) Amendment Act 2020, No. 26 of 2020 Gazetted: 30 July 2020, Gazette No. 65 of 2020
APPOINTMENTS Magistrate Magistrate of the Youth Court Member of SACAT commencing on 20 July 2020 Police Disciplinary Tribunal Protective Security Officers Disciplinary Tribunal
