C and B - [2001] FMCAfam 174

FEDERAL MAGISTRATES COURT OF AUSTRALIA

C & B [2001] FMCA 174

ORDERS – Contravention – procedure – summary dismissal.

Applicant:

Respondent:

File No:

ZP 2357

Delivered on:

26 September 2001

Delivered at:

Parramatta

Hearing Date:

26 September 2001

Judgment of:

Scarlett FM

REPRESENTATION

Counsel for the Applicant:

Mr Ladopoulos of Counsel appeared on behalf of the mother.

Solicitors for the Applicant:

Mark Phillip Symonds, Solicitors, Suite 1, Level 1, 99 Elizabeth Street, Sydney NSW 2000

Solicitors for the Respondent:

Goldrick Farrell Mullan, Solicitors, DX28470 Parramatta

ORDERS

That Counts 1 and 3 contained in the wife’s Application – Contravention of Child Order filed 12 June 2001 are dismissed.
That Counts 2, 5, 6, 7 and 8 contained in the above application are struck out.

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PARRAMATTA

ZP 2357 of 2001

Applicant

And

Respondent

REASONS FOR JUDGMENT

The matter before the court today concerns an application in the form of form 49 of the Family Law rules pursuant to order 35 of those rules brought by the wife against the husband alleging contraventions of certain orders relating to the children. The application, as the rules require, is supported by an affidavit. There are eight counts contained in the details of alleged contraventions. The husband has sought to have the application summarily dismissed and it is this matter which is before the court today.
The law relating to the court’s power to strike out or dismiss proceedings summarily has been discussed by the High Court of Australia in Lindon v The Commonwealth Number 2 reported in 1996 volume 70 ALJR page 541 and by the Full Court of the Family Court of Australia in Bigg v Suzi reported in 1998 FLC 92-799. In the latter case the Full Court comprising Deputy Chief Justice Barblett and Lindenmeyer and Finn JJ upheld the inherent power of the Family Court to dismiss or stay permanently an application which cannot succeed. In addition section 38(2) of the Family Law Act gives the Family Court power to apply the rules of the High Court where its own rules are insufficient. The case of Aldred reported in 1986 FLC 91-753 his Honour, Nygh J, applied order 63 rules 1 and 2 of the High Court rules to stay an application that could not succeed.
Order 26 rule 18 gives the court power to strike out a pleading that does not disclose a reasonable cause of action or answer and that power is discretionary. The principles that govern the exercise of the court’s discretion are set out in the decision of the honourable Kirby J in Lindon v The Commonwealth Number 2 at pages 544, 545. They can be summarised as follows:
(a)it is a serious matter to deprive a person of access to the court so relief is rarely and sparingly provided.
(b)the party seeking such relief must show that it is clear on the face of the opponent’s documents that the opponent lacks a reasonable cause of action or is advancing a claim that is clearly frivolous or vexatious.
(c)an opinion of the court that a case appears weak and such that it is unlikely to succeed is not alone sufficient to warrant termination. Even a weak case is entitled to the time of the court.
(d)Summarily relief for absence of a reasonable cause of action is not a substitute for proceeding by way of a demurrer. If there is a serious legal question to be determined it should ordinarily be determined at a trial.
(e)If it appears that a party may have a reasonable cause of action which it has failed to put in proper form the court will ordinarily allow that party to reframe that pleading.
(f)The guiding principle is doing what is just. If it is clear that proceedings within the concept of the pleading under scrutiny are doomed to fail the court should dismiss the action.
The application of this procedure was recently considered by the Full Court of the Family Court in Ferrell v McTaggart trustees for Sapphire Trust and Others v Blyton reported in 2000 FLC 93-054. The case concerned, amongst other matters, an application for leave to appeal against a decision by the trial judge to refuse summarily dismissal of two applications by the husband. The issues that were raised by the applicants are not specifically relevant to the matters before this court although they were of considerable relevance to the proceedings in Ferrell v McTaggart’s case. They were whether under section 78 of the Family Law Act a declaration be made as to the existence of a trust over the property of a third party in favour of a party to a marriage and whether the Family Court of Australia has accrued jurisdiction.
The learned trial judge, the honourable O’Ryan J had refused to dismiss applications relating to those issues. The Full Court comprising of Chief Justice Nicholson and Lindenmeyer and Kay JJ declined to overturn the decision of the trial judge, saying at page 87887:
“Both the respondents and counsel for the Attorney General of the Commonwealth argued that the answer to each of these questions is in the affirmative. In the circumstances the difficulty of the task facing the applicants in succeeding on an application for summarily dismissal needs only to be stated to be appreciated in that even though determination of any one of the above major issues is reasonably arguable would defeat any such application. It is we think obvious from his Honour’s judgment that each of the issues is reasonably arguable. It therefore follows that the application for leave to appeal must fail.”
That then is to my mind a summary of the law as it applies to the Family Court of Australia. The situation is slightly different in respect of the Federal Magistrates Court of Australia pursuant to the rules of that court. It is quite clear that in proceedings of this nature which are brought under rule 6 of order 35 of the Family Law rules that those rules are taken to be rules of the Federal Magistrates Court. The basis for that is rule 1.05 subrule 3 which says:
Without limiting subrule 2 the provisions of the Family Law rules set out in part 1 of schedule 3 apply with necessary changes to Family Law proceedings.
The balance of the subrule refers to Federal Court rules which aren’t relevant. If one turns to the schedule 3 part 1 it in fact sets out that order 35 of the Family Law rules is one of the Family Law rules which applies in the Federal Magistrates Court subject to any necessary changes. The other relevant part of the Federal Magistrates Court rules are the rules in part 3 of division 13.3 which relate to summary disposal and stay. These rules apply both to general federal law proceedings and to proceedings under the Family Law Act as they come in chapter one of the rules which apply to all proceedings before this court. Rule 13.07 says:
This rule applies if in a proceeding in relation to the whole or part of a party’s claim there is evidence of the facts on which the claim or part is based and either there is evidence given by a party and the proposing party has no answer to the claim or the defence ...(reads)... the court may give judgment on the claim.
Rule 13.09 says:
An application for judgment or for an order that a proceeding be stayed or dismissed must be made by filing an application in accordance with the form of application set out in part 1, schedule 2.
I dispensed with that requirement on this occasion although I make clear that that will not be a general practice of this court and that any future applications must be made by filing an application in accordance with part 1 of schedule 2. Rule 13.10 says:
The court may order that proceedings be stayed or dismissed generally or in relation to any claim for relief in the proceeding if it appears to the court that in relation to the proceeding or claim for relief (a) no reasonable cause of action is disclosed or (b) the proceeding is frivolous or vexatious or (c) the proceeding is an abuse of the process of the court.
The importance of this rule is clearly this that it does not just apply in the circumstances as described by the Full Court in Ferrell v McTaggart and Blyton where it was necessary for the applicant for summary dismissal to show that all of the major issues did not disclose a cause of action. As their Honours said even a determination that any one of the major issues is reasonably arguable would defeat the application. This rule specifically allows the court to excise any particular claim for relief in a proceeding without necessarily upholding or dismissing an entire application. As there are eight counts it is quite clear that the court must look at each of the counts which is claimed in the light of the relevant law, in the light of the applications before the court.
Count 1 says:
Since 2 July 2000 the husband has failed to provide the child, C, for the purposes of exercising contact to the wife.
Count 2 says:
Since 18 August 2000 the husband has failed to make available the child, C, for the purposes of complying with order 1(b) with respect to orders made by consent in the Family Court of Australia at Parramatta.
Count 3 says:
With respect to order 1(c) of the consent orders the wife has attended each and every proposed contact visit with respect to the child, C, on the father’s place of business being G , B Street, G at 5 pm on each alternate Friday since 18 August 2000 up to and including 5 April 2001 when it became apparent to the wife that the husband refused any contact to her with respect to the child, C.
There are five other counts which relate to count 4, failure to make the child available for contact on Mother’s Day, failing to deliver the child to reside with the wife during half the school holiday periods that have occurred since 18 August, count six, failing to abide by an injunction and discuss the Family Law proceedings with both children, count seven, physically abusing and chastising the child, V, and count eight, continually denigrating the wife in the presence of both the children V and C.
The submission made by Mr Schroder of counsel on Monday was that not one of those counts was capable of answer, not one of those counts is supported by evidence and that the totality of them would leave the court with no option but to dismiss the entire application. I would stress at this stage that this exercise before the court today is not to determine whether a prima facie case has been made out because the wife has not been given the opportunity to present the case. This is a preliminary step. It is a submission that the wife would not be able to make out a prima facie case. It’s not appropriate for the court at this stage to rule on the admissibility of the evidence contained in the affidavit. That would be a task which would be undertaken during the substantive hearing of the application if that application were to proceed.
What the court must do is look at the application on its face, look at the supporting affidavit on its face and apply the test as set out in rule 13.10 and apply the tests which are set out by the High Court in Lindon’s case. As I said earlier, the Federal Magistrates Court rules incorporate order 35 of the Family Law rules. Order 35 rule 6 relates to contravention of orders affecting children:
A person may apply to the court to impose a sanction under division 13A of part 7 of the Act on another person who is alleged to have contravened an order affecting children. The application must be in accordance with form 49 and be accompanied by an affidavit that sets out the facts sought to be relied on.
Mr Ladopoulos of counsel has pointed out that that is what the wife has done in this case. She has, he says, complied with that and whilst there may be some infelicities of drafting it is clear that the eight counts, each one setting out an allegation, is capable of being answered. I look at the provisions of form 49 because it’s clear that in proceedings of this nature for imposition of a sanction the proceedings must be followed with precision. Part B requires an applicant to set out details of the orders that are allegedly contravened and they must be set out in full. It’s quite clear that that has in fact been done. The orders said to be contravened are orders 1(b) (c) and (g), 4, 6, 7 and 8. There is annexed to the application a copy of the orders made by the Family Court and therefore registered in this court which clearly indicates a compliance.
Part C of the application details of the alleged contraventions. An applicant is required to state the facts alleged that constitute contraventions of the orders including the date, time and place of each act or omission. There must be a separate paragraph for each alleged contravention. The husband’s argument is that the eight contraventions are unanswerable and that they’re not in a form that can be answered. It is clear that where there is contravention of a child order alleged that that contravention must be set out in the application. Whilst these are not criminal proceedings they are proceedings which require the court to make a finding and require the court to, if a finding is made, to impose a sanction.
The task given to the court is in fact set out in division 13A. Under section 70NF(1) the requirements of what the court must find are set out in paragraphs B and B(a). In each case a court having jurisdiction under the Family Law Act must be satisfied that the person has committed a contravention of the primary order and that person does not prove that he or she had a reasonable excuse for the current contravention. Examples of reasonable excuse are set out in section 70N(e) and the standard of proof of reasonable excuse is set out in section 70NE(a). That’s the balance of probabilities and the law makes it quite clear that proving a reasonable excuse is an obligation on the respondent.
Now can it be said that all an applicant needs to do is prove or allege a contravention of a specific order? Yes it can, but the contravention must be set out with such precision that a respondent should be capable of admitting or denying that alleged contravention as set out in order 35 rule 14 or admitting contravention and leading a reasonable excuse. It is for these reasons that the date, time and place of each act or omission must be specified because if there is a blanket claim the obligation imposed upon a respondent becomes almost impossible. If there is one contravention or if there are many it’s a matter for consideration.
If the respondent is to allege a reasonable excuse and the onus of proof of that is on the respondent, the respondent must know when and in what circumstances the reasonable excuse must be led. A person could have a reasonable excuse in the month of January because a state of affairs which didn’t apply in the month of February.
There is no substitute for examining each of the counts. Count one alleges since 2 July 2000 the husband has failed to provide the child, C, for the purposes of exercising contact to the wife. The count is a blanket count and refers to a period of time prior to the making of the orders sought to be enforced. The orders in fact were made on

18 August 2000. Count one is, to my mind, so wide and extending beyond the period of time that is covered by the orders that I am not satisfied it can be answered in any way. It is a general statement. It does not specify a particular contravention. Accordingly I am of a view that count one does not disclose a reasonable cause of action.
It turn now to count two. Count two says since 18 August 2000 the husband has failed to make available the child, C, for the purposes of complying with order 1(b) with respect to orders made by consent in the Family Court at Parramatta on 18 August 2000 herein called the consent orders. Count two is drafted in more precise terms. It sets out a commencement date which is the date of the particular order. It alleges a blanket failure to comply with order 1(b). Order 1(b) says that:
The child, C D B B, born 28 December 1989 reside with the parties as follows: (i) with the wife each alternate weekend from 5 pm on Friday or as communicated as between the parties to 6 pm on the following Sunday.
Now it’s clear that the order envisages not a continuing state of affairs, a continuing period of residence but a series of pieces of residence for the purpose of weekends or parts thereof. The pleading to my mind is defective because it’s contemplated by the orders that there would be numerous periods of contact or numerous periods of residence and it is not clear what the dates of the relevant weekends are and whether or not there is a particular compliance. There is a blanket statement there’s been no compliance whatsoever. It is not possible to discern from the allegation how many breaches there are. I am of a view that this creates a particular difficulty as far as the applicant is concerned.
I look at the affidavit in support. The affidavit of course should provide the evidence. Paragraph 11 and very briefly paragraph 13 make some reference to failure to make the child available for contact but again there is no particularisation there. Is this a situation where the application does not disclose a reasonable cause of action and should be dismissed? I am of a view that this is a matter that can be dealt with separately from count one. It is not capable of proceeding in its present form because it lacks particularisation and it is certainly not supported by any evidence. It would appear therefore that as far as count two is concerned that the wife may have a reasonable cause of actin but has failed to put that in proper form.
Mr Ladopoulos of counsel pointed out that there should not be an overly strict application of the rules, certainly in a situation where a party can re-apply and there is a clear difference between striking out and summarily dismissing. There was a brief reference to the two concepts in Mr Schroder of counsel’s submissions but the difference is of course quite significant and Mr Ladopoulos of counsel touched on that very point on Monday. If a matter is dismissed it’s dismissed and there is no recourse open to the party other than an appeal. If a matter is struck out it is a matter that can be brought again in proper form and that’s a significant difference. I am of a view that count two therefore should not, in the interests of justice, be dismissed by way of a final order. It is not in a form that at present can be argued but that would not necessarily be fatal if it were in fact pleaded in proper form and in fact backed up by sufficient evidence. I am of a view that count two should not be dismissed as such but struck out and I cannot over-stress the difference between the two concepts.
I turn now to count three which says: with respect to order 1(c) of the consent orders the wife has attended each and every proposed contact visit with respect to the child, C, on the father’s place of business being G, B Street, G at 5 pm on each alternate Friday since 18 August 2000 up to and including 5 April 2001 when it became apparent to the wife that the husband would refuse any contact to her with respect to the child, C. Now order 1(c) says for the purposes of facilitating order (b) herein the wife shall collect C from the husband’s place of business being G, B Street, G at 5 pm on that Friday.
The difficulty with that count is that it relates to actions by the wife and a perception by the wife. It doesn’t relate to anything that the husband is required to do. I am of a view that count three does not disclose a cause of action. It does not set out an act or omission by the husband and as it does not disclose a cause of action well the cause of action should therefore be dismissed.
I turn to count four. Count four says: with respect to order 1(g) of the consent orders the husband failed to make available the child, C, to exercise contact to the wife on Mother’s Day. Mr Schroder of counsel alleges that this too has not been properly pleaded and is unanswerable. Order 1(g) says that the wife have contact to both children on the first weekend in May (the Sunday being Mother’s Day) from 5 pm on Friday to 6 pm on the following Sunday. Does the count in the form in which it is drafted, somewhat sparingly, comply with the requirements of paragraph eight of from 49 stating the facts alleged to constitute contravention of the orders including the date, time and place of each act or omission.

Mr Ladopoulos of counsel has pointed out quite properly that the commencing date of the orders is 18 August 2000 and the date of the application is 12 June 2001. The court can clearly take judicial notice of the fact that there’s only one Mother’s Day between those two dates. There is no confusion. As Mr Ladopoulos has pointed out, there’s only one day over that entire period which can be the relevant day which is the first Sunday in May 2001. Mother’s Day 2000 had already occurred by the time the orders were made. I am of a view that count four has been pleaded in proper form. It is clear on its face as to what it’s meant. It is clear what case the husband is required to meet and equally importantly it is clear to the court what contravention is required to be found. In other words, what contravention the applicant requires the court to find.
The allegation in count four is in fact backed up, somewhat vaguely, by evidence in paragraphs 11 and 13. Paragraph 11 says in its first sentence:
I say that since 2 July 2000 irrespective of orders made by consent on 18 August 2000 I’ve yet to have had any contact to C whatsoever.
So there is an allegation of no contact. If there’s no contact since

2 July 2000 and the date of the application it must follow that that evidence refers to Mother’s Day 2001. There’s an allegation, there is affidavit evidence in support thereof. I am of the view that that allegation does disclose a cause of action.
I turn to count five. Count five says with respect to order 4(ii) of the consent orders the husband has failed to deliver the child, C, to reside with the wife during half of the school holiday period that have occurred since 18 August to date hereof. The order alleged to be breached is order 4(ii) which is paraphrased in paragraph seven of the application by saying that during all school holiday periods both children to reside with the wife during half of that period. The relevant part of the actual order as annexed says:
4. That during all school holiday periods both children to reside with the wife during half of that period and the husband and the wife shall consult with each other prior to the commencement of all school holiday periods to facilitate contact pursuant to order 4 therein.
The count does not disclose the number of times when contact was not provided and it does not disclose the relevant times or the relevant dates making up half of the various school holiday periods which are to be set out. The orders do not particularise which half of the school holiday period is appropriate nor does the count particularise any relevant dates. There may well be a reasonable cause of action contained in there somewhere which has not been put in proper form. I am of the view it would not be in the interests of justice to dismiss the count outright but it should be and will be struck out.
Similarly count six says: with respect to order six of the consent orders the husband has failed to abide by the said injunction therein and has discussed the Family Law proceedings and these orders with the child V and the child C since the making of these orders on 18 August 2000. The count should perhaps be void for duplicity as it refers to, or doesn’t make it clear whether it refers to one occasion or many and as far as the affidavit is concerned there is just no evidence at all as to any breach. There is no evidence provided whatsoever as to any time. The count cannot stand in its present form and will be struck out.
I look at count seven: with respect to order 7 of the consent orders the child, V, has complained of not only the husband chastising her but also physically abusing her by way of smacking her on the face and bottom. The child V has informed the wife that the husband will smack her on the bottom if she discusses anything to do with or about her mother. For example, if V tells the husband that she loves her mother and if V misbehaves herself in any other way the husband slaps her across the face. There’s no specification of time. The evidence in support thereof appears to be contained in paragraph 12 and appears to relate to one occasion in December 2000. The rest of it is just a bland statement of matters over a particular period of time.
It’s fair to say that the evidence in support of that count is weak and the drafting of the count is unhelpful. There may be somewhere a reasonable cause of action which, if put in proper form by an amended pleading, could be brought. Count seven is struck out. I come now to count eight. With respect to order eight of the consent orders the husband continually denigrates the wife in the presence of both V and C. The same criticism applies that there is no time, date or place as set out. As far as evidence is concerned there is in fact none. There is a brief reference to denigrating but that goes no further than the actual allegation. I am of the belief that in its present form the count must be struck out.
I would stress at this stage that I have not embarked on the evidence that Mr Schroder invited me to, to make a ruling on the admissibility of the evidence contained in the various paragraphs of the affidavit. If this affidavit is intended to be used in these proceedings then the court will embark on that exercise at that time. This is not the appropriate time to do it. There is certainly on reading the affidavit some material which appears not to be relevant to the proceedings before me but there is certainly some material which appears to be more relevant to the wife’s defence of the husband’s application than it does to the prosecution of the wife’s application against the husband. So what I have done is I have taken the evidence in the wife’s affidavit at it’s highest without going in any way into the admissibility of any of it.
That leaves the court with the situation which the Federal Magistrates Court rules allows where parts of a pleading may be struck out or dismissed without the sudden death application which appears to be the situation in other courts. That of course is pursuant to the advantage that this court has in its own rules. The application as a whole will not therefore be dismissed summarily but counts 1 and 3 contained in the wife’s application, contravention of child order filed 12 June 2001 are dismissed. I further order that counts 2, 5, 6, 7 and 8 contained in the above application are struck out.

I certify that the preceding thirty-nine(39) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate:

Date: