Dennis and Herman

[2011] FMCAfam 252

FEDERAL MAGISTRATES COURT OF AUSTRALIA

DENNIS & HERMAN [2011] FMCAfam 252

FAMILY LAW – Children – Contravention – Application for summary dismissal – “no case to answer” submission – where respondent led evidence to rebut the applicant’s claim.

Family Law Act 1975 (Cth), s.70NAC
Federal Magistrates Act 1999 (Cth), s.17A
Federal Magistrates Court Rules 2001, r.13.10

Applicant: MR DENNIS

Respondent: MS HERMAN

File Number: SYC 5373 of 2007

Judgment of: Scarlett FM

Hearing date: 18 February 2011

Date of Last Submission: 18 February 2011

Delivered at: Sydney

Delivered on: 22 March 2011

REPRESENTATION

The Applicant: In person

Solicitors for the Respondent: Mr Feather, Humpreys & Feather

ORDERS

1. The application for summary dismissal of the Application – Contravention filed on 22 October 2010 is dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Dennis & Herman is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYC 5373 of 2007

MR DENNIS

Applicant

And

MS HERMAN

Respondent

REASONS FOR JUDGMENT

Application

1. This is an application by the respondent mother for a finding by the Court that the applicant father has not made out a case for her to answer in respect of his application that she should be dealt with for contravention of a parenting order. Essentially, the respondent is applying for summary dismissal of the application.

Background

1. The applicant brought an application claiming that the respondent had contravened two separate Orders on two different occasions. On the day of the hearing, however, he told the court that he would only be proceeding on the first count.

2. The order which the applicant has been contravened was made in proceedings between the parties on 29^th October 2009. The relevant order is Order 11, which states:

   Neither parent is to change the school enrolment of either of the children, including enrolling either child in a High School, without the written consent of the other parent.

3. The application describes the alleged contravention as:

   The respondent without reasonable excuse changed the school enrolment of X and Y from (omitted) to (omitted) Public Schools without consent from the father.

4. The applicant supports the application with an affidavit affirmed on 19^th October 2010, in which he deposes that the children were attending (omitted) Public School when the orders were made. However, he claims that the respondent:

   …removed the children from (omitted) Public School and placed them with (omitted) Public School, where they have attended for the entirety of 2010. I did not give my permission for this to happen.[1]

   [1] Affidavit of Mr Dennis 19.10.2010 at paragraph [5]

The Hearing

1. The applicant gave oral evidence and was cross-examined by the respondent’s solicitor, Mr Feather. In the course of the cross-examination, Mr Feather tendered two documents:

   a)a letter from the Principal of (omitted) Public School; and

   b)School Attendance Policy from the New South Wales Department of Education and Training entitled “Student Attendance in Government Schools: Procedures”.   

2. The purpose of the two tenders was to show that the children were not in fact enrolled at (omitted) Public School at all, but were attending under what is known as “short term attendance”.

3. It was submitted on behalf of the respondent that there was no case for her to answer. Mr Feather submitted that there was no evidence that the children’s enrolment had changed. The children were attending (omitted) Public School under the provisions of the short term attendance policy. The meaning of the word “enrolment” in the order must be construed strictly.

Conclusions

1. The Court has the power to enter summary judgment against a party under the provisions of s 17A of the Federal Magistrates Act. Relevantly, s 17A(2) provides that:

   The Federal Magistrates Court may give judgment for one party against another in relation to the whole or any part of a proceeding if:

   (a)    the first party is defending the proceeding or that part of the proceeding; and

   (b)    the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding.

2. Rule 13.10 of the Federal Magistrates Court Rules 2001 sets out the Court’s powers of disposal by summary dismissal. Rule 13.10 provides relevantly that:

   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;

3. Thus, it can be seen that the respondent is seeking an order for summary dismissal of the application. It is not necessary to show that the application is hopeless or bound to fail for it to have no reasonable prospect of success (see s 17A(3)).

4. However, it is clear that the focus of the Court must be on the strength or otherwise of the case brought by the applicant. The Court must consider the applicant’s case at its highest whilst disregarding any considerations in favour of the respondent.

5. Here, the applicant has brought evidence to show that the children have left one school and are attending another. This is sufficient, in my view, to establish a case to answer, at least to the extent that it cannot be said that the applicant has no reasonable prospects of success based on the applicant’s evidence.

6. The respondent’s claim that the application cannot success is based on evidence led by the respondent, by the tender of the documents intended to rebut the applicant’s claim.

7. Where the respondent has chosen to go into evidence, it is inappropriate for the Court to make an order for summary dismissal on the basis that the applicant has no reasonable prospect of successfully prosecuting the application.

8. The respondent has denied contravening the order. In my view it is necessary for to establish that either she has not contravened the order or that, if she did, she had a reasonable excuse for doing so.

9. The application for summary dismissal of the application will itself be dismissed.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Date:  23 March 2011