Bartram & Marsden (No 2)
[2024] FedCFamC1F 574
•22 August 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Bartram & Marsden (No 2) [2024] FedCFamC1F 574
File number(s): SYC 6927 of 2019 Judgment of: BOYLE J Date of judgment: 22 August 2024 Catchwords: FAMILY LAW – CONTRAVENTION – Where Final Orders were made on 14 August 2023 – Where the father alleges the mother has contravened the Final Orders - Where the mother seeks summary dismissal of the father’s Contravention Applications pursuant to s 102QAB of the Family Law Act 1975 (Cth). Legislation: Family Law Act 1975 (Cth) ss 68B, 102QAB Cases cited: Bigg & Suzi (1998) 22 Fam LR 700
Lindon v Commonwealth of Australia(No 2) (1996) 136 ALR 251
Stativa & Stativa [2015] FamCAFC 170
Division: Division 1 First Instance Number of paragraphs: 34 Date of hearing: 22 August 2024 Place: Sydney Counsel for the Applicant: Litigant in person Counsel for the Respondent: Mr Katsinis Solicitor for the Respondent: Hillcrest Family Lawyers Pty Ltd ORDERS
SYC 6927 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR BARTRAM
Applicant
AND: MS MARSDEN
Respondent
ORDER MADE BY:
BOYLE J
DATE OF ORDER:
22 AUGUST 2024
THE COURT ORDERS THAT:
1.The matter is adjourned to 14 October 2024 at 10am for hearing in relation to the Contravention Application filed by the mother on 4 July 2024.
2.It is requested that the Independent Children’s Lawyer attend the hearing on 14 October 2024.
3.The Contravention Application filed by the father on 12 April 2024 is summarily dismissed.
4.The Contravention Application filed by the father on 14 May 2024 is summarily dismissed.
5.The Contravention Application filed by the father on 7 June 2024 is summarily dismissed.
6.The Contravention Application filed by the father on 18 June 2024 is summarily dismissed.
7.The Contravention Application filed by the father on 4 July 2024 is summarily dismissed.
THE COURT NOTES THAT:
A.The father has made an application pursuant to s 102NA of the Family Law Act 1975 (Cth) for legal representation in these proceedings and that is the basis on which the matter has been adjourned.
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).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of 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 Bartram & Marsden has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
BOYLE J:
The father has filed various Contravention Applications as referred to in the Orders that listed this matter for hearing today, the specific dates of filing being 12 April 2024, 14 May 2024, 7 June 2024, 18 June 2024 and 4 July 2024.
The mother's application is that the Contravention Applications filed by the father should be summarily dismissed. The essence of her application is that there were preconditions to orders for time, which the father has not met, pursuant to Orders 8 and 9.[1] As I will detail shortly, because of his failure to meet those requirements, 57 out of 59 of the contraventions asserted in the applications must fail.
[1] Orders of 14 August 2023.
BACKGROUND
This matter arises from a parenting dispute between the parties with respect to their two children, X who is aged six and Y who is aged five.
There have been lengthy proceedings between the parties. I understand from the background, which is common to both, that the parties separated when Y was a baby.
The Orders of Curran J, which concluded those proceedings, came after some Consent Orders were made. The matters remaining in dispute were resolved by Orders made by the court on 14 August 2023. The orders that were made by consent include Orders 8 and 9 of the Orders which are the subject of contention today.
Following the making of those Orders there was then an appeal filed by the father, and an Amended Notice of Appeal was filed on 25 October 2023. There was a judgment of the Full Court of the Federal Circuit and Family Court of Australia, which is before me, dated 23 November 2023.
Part of the appeal before the Full Court was with respect to Orders 8 and 9.[2] Those Orders read:
8. Within 7 days from the date of these Orders, the father shall do all acts and things necessary to enrol into a men’s behavioural change course (such as [B Support Services]’s [men’s behavioural change course]) or [C Support Services]’s ‘Men’s Behaviour Change Program’) and thereafter do all acts and things necessary including payment of fees to complete intake assessment and complete the program.
9. Upon the father’s completion of the men’s behavioural change course as provided for in Order 8 herein, the father is to, as soon as practicable, provide to the mother a certificate of completion by email.
[2] Orders of 14 August 2023.
McClelland DCJ authored the judgment in the appeal. At paragraph 17 of that decision, he referred to the father wanting Orders 8 and 9 to be removed. It is clear when one reads that decision, that the appeal was dismissed and the father was not successful. It would, therefore, have been clear to the father that Orders 8 and 9 remained in full effect following the Full Court decision, if it was not clear already from the Orders and decision of Curran J.
THE LAW
These proceedings are with respect to Contravention Applications which the wife seeks be dismissed.
Part XIB is part of the new amendments to the Family Law Act 1975 (Cth) (“the Act”), and some time was taken up this morning with directing the parties to the correct legislation, rather than the old section 45A.
Section 102QAB of the Act is the section that the mother moves on:
(1)The court may make a decree for one party (the first party) against another in relation to the whole or any part of proceedings if:
(a) the first party is prosecuting the proceedings or that part of the proceedings; and
(b) the court is satisfied that the other party has no reasonable prospect of successfully defending the proceedings or that part of the proceedings.
And relevantly:
(3) For the purposes of this section, a defence or proceedings or part of proceedings need not be:
(a) hopeless; or
(b) bound to fail;
to have no reasonable prospect of success.
That is the section that is being relied upon with respect to the summary dismissal of the father's Contravention Applications.
There is High Court authority from Lindon v Commonwealth of Australia(No 2),[3] where Kirby J provided a list of principles which are applicable to summary judgments. The Full Court of the Family Court in Stativa & Stativa,[4] summarised those which is, in essence, what was done previously in Bigg & Suzi.[5]Those matters are:
·It is a serious matter to deprive a party of access to the courts and the power to do so should be rarely and sparingly used;
·The party seeking summary dismissal must show that it is clear on the face of the other party’s documents that the other party lacks a reasonable cause of action or is advancing a claim that is clearly frivolous or vexatious;
·That a case appears weak and unlikely to succeed is of itself not sufficient to satisfy summary dismissal;
·If there is a serious legal question to be tried, then it should ordinarily be determined at a trial of the issues;
·Where, notwithstanding a defect in the pleadings, if it appears that a party may have a reasonable cause of action which has not been put in proper form, a Court will ordinarily allow that party to reframe the pleadings; and
·The “guiding principle” is doing what is just.
[3] Lindon v Commonwealth of Australia (No 2) (1996) 136 ALR 251, 256 (Kirby J).
[4] Stativa & Stativa [2015] FamCAFC 170.
[5] Bigg & Suzi (1998) 22 Fam LR 700.
Those are the principles that one must consider when looking at an application for summary dismissal. It is clear that it is the father's documents that I must look to in order to determine the application.
THE APPLICATIONS
These are Contravention Applications. And as I have already indicated, there are a number of them, containing 59 allegations of contravention of Orders made against the mother.
There is, within those applications, Orders sought by the father for the mother to be imprisoned for breaching Orders, for a period of 12 months. That really highlights the seriousness of the applications that have been brought by the father.
These applications are brought against, as I have referred to, a backdrop of lengthy litigation, with further substantive proceedings on foot by way of an application initiating and a response that has been filed fairly recently. An Independent Children's Lawyer has been appointed, there previously having been one in the proceedings before Curran J. These proceedings are an opportunity to examine any serious issues required.
Having regard to the father's evidence, there is no dispute that 57 out of 59 of the contraventions alleged relate to time arrangements predicated on the father complying with the requirements of Orders 8 and 9, that he complete a Men's Behaviour Change Program and provide to the mother certification of his completion.
There is no issue that that has not occurred, on the father's own evidence. It is clear that he has not complied with his obligations pursuant to the Orders. It is also clear on the face of the Orders, that he is not constrained to seek a Men's Behaviour Change Program only through B Support Services or C Support Services. References to B Support Services or C Support Services are provided as examples, which is clear from the phrasing “such as [B Support Services] or [C Support Services]”.[6]
[6] Orders of 14 August 2023, Order 8.
There is no evidence that the father has sought to complete a program through another organisation. There is no evidence that, for example, the father has sat down with the Family Advocacy and Support Service worker at the Court and talked through the option of various courses that might be available. There is no evidence whether he advised that he is subject to a section 68B injunctive Order that has been made restraining his conduct, by Curran J.[7]
[7] Orders of 14 August 2023, Order 46.
The Order does not require him to attempt to enrol in a course. It is a requirement that he enrol in it and complete it, and it is incumbent on him to do that. Without having done that course and provided that certification to the mother, it is clear that he could not satisfy that there have been breaches of the Orders as put by him, and I accept that his applications on the 57 out of 59 counts referred to must fail.
As regards the issue with respect to Dr E, I accept the father has provided evidence through the affidavit of 11 April 2024 at annexure “E”, of an appointment in 2023 that he attended with Dr E. He has then annexed to the affidavit filed 14 May 2024, as I follow it, the letter from Dr E confirming his attendance in 2024. The father says that the six-monthly pattern of attendances had been established prior to the hearing, and that that is what he was continuing to do, rather than restarting it as and from the Orders.
The issue with respect to Dr E is not pressed by the mother's counsel as forming part of the basis for the summary dismissal application. I refer to it only because it was a matter of some concern to the father that it be clear that he has complied, as far as he understood it, with the Orders.
Otherwise, there are two counts contained in the Contravention Application filed on 18 June 2024, which relate to a breach of Order 32. Order 32 of the Orders sets out:[8]
32.The children will spend time with the father if not otherwise in the father’s care on the father’s birthday from the conclusion of school or day-care until the commencement of school the following day, or on a non-school day from 3pm until 9am the following day.
[8] Orders of 14 August 2023.
What the father has set out at page seven, referred to as counts one and two, cover this particular issue.[9] The first of those refers to the date, time and location of the alleged act or omission being in 2024 at F Shopping Centre at 3.00 pm, and sets out “The respondent did not attend [F Shopping Centre] to pass [Y] over to the Father” (As per the original). It then refers to Order 32 as I have set it out.
[9] Father’s Contravention Application filed 18 June 2024.
The next refers to 2024 at FF School at 3.25 pm and sets out “The respondent picked up [X] from [FF School], which prevented the father from collecting him at 3:25 pm, to spend the night with him”.[10] It then details Order 32 from the Orders of Curran J. That is the totality of the material provided in the Contravention Application.
[10] Father’s Contravention Application filed 18 June 2024.
When one turns to the father's affidavit, he sets out at paragraph 17: [11]
17.I took time out of work and attended [F Shopping Centre] […] at 3pm to collect [Y]. Marked “D” in the tender bundle is a message to [Ms Marsden] confirming this.
(As per the original)
[11] Father’s affidavit filed 18 June 2024.
That is the totality of the evidence, plus the annexure, which contains two messages to the mother, indicating that he proposed being at F Shopping Centre at 3.00 pm the next Tuesday to collect Y, and then that he had arrived at F Shopping Centre and inquiring whether she was attending.
The complaint made by the mother is that the evidence provided by the father with respect to those two breaches could not support the finding of a breach of the Orders, and that it is insufficient to make out the Contravention Application.
The submission made by counsel for the mother is accepted. There is no evidence of the father's birth date, there is no reference to the date in the Orders, there is no reference in the Contravention Application to that date. There is no evidence that he attended at all, with respect to X.
I am not satisfied that the material that has been provided is sufficient to satisfy the particulars of the alleged breach.
This is in circumstances where because this is a Contravention Application, the mother is not required to put on any evidence, or make any answer to the application. She has, effectively, the right of silence in the matter, and is not required to either comment on, or file any affidavit with respect to the applications.
I am satisfied that in these circumstances, it is appropriate that the mother's application should succeed.
I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Boyle. Associate:
Dated: 22 August 2024
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