Daiber & Najaran

[2020] FCCA 3655

FEDERAL CIRCUIT COURT OF AUSTRALIA

Daiber & Najaran [2020] FCCA 3655

File number:

MLC 10147 of 2017

Judgment of:

JUDGE O'SHANNESSY

Date of judgment:

12 November 2020

Catchwords:

FAMILY LAW – parenting –summary dismissal application – rule 13.10 – whether applicant’s application for final orders has likelihood of success – where applicant is in immigration detention – summary dismissal application dismissed.   

Legislation:

Family Law Rules2004 (Cth) r 10.12.

Family Law Act 1975 (Cth)

Federal Circuit Court Rules2001 (Cth) r 13.10.

Cases cited:

Bigg v Suzi (1998) FLC ¶92-799

Lindon v Commonwealth(No. 2) (1996) 70 ALJR 541

Number of paragraphs:

8

Date of hearing:

12 November 2020

Place:

Melbourne (via Microsoft Teams)

The Applicant:

Appeared in Person

Counsel for the Respondent:

Ms P Chia

Solicitor for the Respondent:

Nicholas James Lawyers

Solicitor for the Independent Children's Lawyer:

Ms M Pandeli of Barbayannis Lawyers Ptd Ltd

ORDERS

MLC 10147 of 2017

BETWEEN:

MR DAIBER

Applicant

AND:

MS NAJARAN

Respondent

ORDER MADE BY:	JUDGE O'SHANNESSY
DATE OF ORDER:	12 NOVEMBER 2020

THE COURT ORDERS THAT:

1.The Respondent’s application for summary dismissal of the proceedings is dismissed.

2.The matter be adjourned to a date to be advised for further mention.

AND THE COURT NOTES THAT:

A.If in any proceedings there are allegations of family violence and the provisions of section 102NA of the Family Law Act 1975 apply (see attached Family Violence Information Sheet), any unrepresented party will not be permitted to personally cross-examine the other party/parties.

B.Affected unrepresented parties may apply to the Commonwealth Family Violence and Cross-Examination of Parties Scheme (“the Scheme”) for representation but any such application must be made at least 12 weeks prior to the final hearing.

C.Further information about the legislation and the Scheme can be found at Part 4 of the attached Family Violence Information Sheet.

D.If s102NA applies and a party becomes unrepresented after trial directions have been made, that party is required to promptly advise the Court.

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 under the pseudonym Daiber & Najaran is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

JUDGE O’SHANNESSY

1. These are the settled reasons of ex tempore reasons delivered when dismissing an application of Ms Najaran (‘the Mother’) for summary dismissal of Mr Daiber’s (‘Mr Daiber’) application for the children to live with him that came before me in a duty list.  Mr Daiber is in immigration detention and awaits a trial in Victoria on serious criminal charges.

2. The Mother’s application relies upon Rule 10.12(d) of the Family Law Rules2004 (Cth) that is:

   A party may apply for summary orders after a response has been filed if the party claims, in relation to the application or response, that:

   (d)       there is no reasonable likelihood of success.

3. The applicable Federal Circuit Court Rules 2001 (Cth) are worded slightly differently but to the same effect. Rule 13.10 of those rules provides:

   The Court may order that a proceeding be stayed, or dismissed generally or in relation to any claim for relief in the proceeding, if the Court is satisfied that:

   (a)the party prosecuting the proceeding or claim for relief has no reasonable prospect of successfully prosecuting the proceeding or claim.

4. The legal test that I am required to apply on a summary dismissal application on the basis of no reasonable prospect of success is set out in Bigg v Suzi (1998) FLC ¶92-799 (‘Bigg v Suzi’) at 5.10, where the authority of Lindon v Commonwealth(No. 2) (1996) 70 ALJR 541 (‘Lindon v Commonwealth’) is set out there and is as follows:

   5.10The principles which govern the exercise of that discretion, be it exercised under O 26 r 18, or under the inherent power, [or, we would suggest, under O 63 rr 1 and 2] were recently stated by Kirby J in Lindon v. The Commonwealth (No. 2) (1996) 70 ALJR 541 at 544-5, as follows:

   “The approach to be taken by the Court to the Commonwealth's application for summary relief is not in doubt:

   1.It is a serious matter to deprive a person of access to the courts of law for it is there that the rule of law is upheld, including against government and other powerful interests. This is why relief, whether under O 26, r 18 or in the inherent jurisdiction of the Court, is rarely and sparingly provided; [General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 128f; Dyson v Attorney-General [1911] 1 KB 410 at 418.

   2.To secure such relief, the party seeking it must show that it is clear, on the face of the opponent's documents, that the opponent lacks a reasonable cause of action [Munnings v Australian Government Solicitor (1994) 68 ALJR 196 at 171f, per Dawson J] or in advancing a claim that is clearly frivolous or vexatious; [Dey v Victorian Railways Commissioners (1949) 78 CLR 62 at 91.]

   3.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. [Coe v The Commonwealth (1979) 53 ALJR 403; Wickstead v Browne (1992) 30 NSWLR at 5-7.] Even a weak case is entitled to the time of a court. Experience teaches that the concentration of attention, elaborated evidence and argument and extended time for reflection will sometimes turn an apparently unpromising cause into a successful judgment;

   4.Summary relief of the kind provided for by O 26, r 18, for absence of a reasonable cause of action, is not a substitute for proceeding by way of a demurrer. [Coe v The Commonwealth (1979) 53 ALJR 403 at 409.] If there is a serious legal question to be determined, it should ordinarily be determined at a trial for the proof of facts may sometimes assist the judicial mind to understand and apply the law that is invoked and to do so in circumstances more conducive to deciding a real case involving actual litigants rather than one determined on imagined or assumed facts;

   5.If, notwithstanding the defects of pleadings, it appears that a party may have a reasonable cause of action which it has failed to put in proper form, a court will ordinarily allow that party to reframe its pleading. [Church of Scientology v Woodward (1980) 154 CLR 25 at 79.] …

   6.The guiding principle is, as stated in O 26, r 18(2), 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 to protect the defendant from being further troubled, to save the plaintiff from further costs and disappointment and to relieve the court of the burden of further wasted time which could be devoted to the determination of claims which have legal merit.''

   (emphasis added)

5. I understand that to be settled law, and the point is, to secure the summary dismissal, the Mother must show that it is clear on the face of Mr Daiber’s documents that he lacks a reasonable cause of action, or that his claim is clearly frivolous or vexatious.  I accept that, on the Mother’s case, that is that she was never in a relationship with Mr Daiber, that he has sexually assaulted her, violently assaulted the children and lied about what was agreed to be his role, if those matters are proven, then his case would have real and significant difficulties.

6. I will not prejudge his case by ruling that on his affidavits that it lacks a reasonable cause of action, but there are some real and obvious problems for Mr Daiber in the circumstances where, whether or not it is true, the children that he wants to re-establish a relationship with are giving evidence against him.  However, that does not mean that, on Mr Daiber’s documents, that it lacks a reasonable cause of action, or the particular rule Ms Chia took me to very helpfully, rule 10.12(d) (or Rule 13.10), “had no reasonable likelihood of success” or “no reasonable prospect of successfully prosecuting the proceeding…”, and the word is no reasonable likelihood (or prospect) of success, not has challenging circumstances. Whilst my primary concern is the welfare of the children, I am alert to paragraph 3 of Lindon v Commonwealth:

   3.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.

7. On the face of it, no one is able to convince me that what Mr Daiber says is not true, that is, that upon being acquitted of the criminal charges where the Mother is said to be the victim, his protection visa would operate until it is determined that his appeal processes relating to his claim for asylum are exhausted and it is impossible for me to predict at this point what would occur.  Ms Chia puts it as high as it is “likely” that he will be deported.  I cannot find that that is a matter of fact, the burden being upon Ms Chia to satisfy me of those matters.

8. So I dismiss the Mother's application. At this stage, the case is alive. I am not satisfied that it is appropriate to set it down for hearing as I was tempted to do in the circumstances where the consequences of the criminal proceedings and how that will relate to these proceedings is unknown. I will fix the matter for mention on a date to be advised. The matter of section 102NA has not been addressed.

I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment of Judge O'Shannessy.

Associate:

Dated:       1 June 2021