Devine & Devine
[2022] FedCFamC2F 919
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Devine & Devine [2022] FedCFamC2F 919
File number(s): PAC 2192 of 2016 Judgment of: JUDGE DICKSON Date of judgment: 1 July 2022 Catchwords: FAMILY LAW – CONTRAVENTION APPLICATION – Part heard Trial – preliminary issues - where respondent makes application for summary dismissal of certain counts of the applicant’s application – where some of the counts date back to 2020 and 2021 – where those counts can be considered an abuse of process – duplicity of counts – where respondent entitled to know with reasonable particularly the case against them - counts dismissed
PRACTICE AND PROCEDURE - Admissibility of evidence – late filed affidavit without leave of the Court – rulings as to admissibility of evidence in primary affidavit – late filed affidavit declined to be received into evidence
Legislation: Family Law Act 1975 (Cth) s 45A
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 10.09
Cases cited: Davis & Davis (1976) FLC 90-050
Feranti & Connor (No.2) [2007] FamCA 1447
Hearne & Hearne [2015] FamCAFC 178
SCVG & KLD (No 4) [2018] FamCA 593
Division: Division 2 Family Law Number of paragraphs: 36 Date of hearing: 1 July 2022 Solicitor for the Applicant: Mr Lynch of Gorval Lynch Counsel for the Respondent: Ms Tabbernor Solicitor for the Respondent: Sydney Family Law Specialists Pty Ltd ORDERS
PAC 2192 of 2016 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR DEVINE
Applicant
AND: MS DEVINE
Respondent
ORDER MADE BY:
JUDGE DICKSON
DATE OF ORDER:
1 JULY 2022
THE COURT ORDERS THAT:
1.Counts 2, 3, 4, 5, 6 and 7 of the Application for Contravention (‘the said application’) filed on 3 November 2021 be summarily dismissed.
2.Count 15 of the said application be dismissed for lack of particularity.
3.By consent, the following paragraphs of the father’s affidavit filed 3 November 2021 (‘the said affidavit’) be struck out:
(a)Paragraph 14;
(b)Paragraph 16;
(c)Paragraph 19;
(d)Paragraph 24 from the second sentence;
(e)Paragraph 25;
(f)Paragraph 27;
(g)Paragraph 28;
(h)Paragraph 30 from the words “Ms Devine prevented the children spending time with me”;
(i)Paragraph 31;
(j)Paragraph 33 from the words “Ms Devine prevented the children spending time with me”;
(k)Paragraph 34;
(l)Paragraphs 36-40 inclusive;
(m)Paragraphs 54-60 inclusive; and
(n)Paragraph 84 inclusive;
4.The following paragraphs of the said affidavit be struck out:
(a)Paragraph 15;
(b)Paragraph 18;
(c)Paragraph 23;
(d)Paragraph 48; and
(e)Paragraph 88- 93 inclusive.
5.The Court declines to receive into evidence the affidavit filed by the applicant father on 1 July 2022.
6.Judgment in relation to the respondent’s oral application for no prima facie case to answer in relation to counts 8, 9, 10, 11, 12 and 14 of the said application is reserved for delivery to 31 August 2022 at 9:30am (SA time) by telephone.
7.Count 13 of the said application is adjourned to 31 August 2022 at 9:30am (SA time) by telephone.
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).
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 by this Court under a pseudonym Devine & Devine has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
(Ex tempore reasons settled from transcript)JUDGE DICKSON:
INTRODUCTION
The reasons for judgment in this matter were delivered orally following the hearing between the parties concerned. These reasons have been corrected for errors of expression and syntax in an attempt to make the orally delivered reasons amenable to being read.
BRIEF BACKGROUND
These proceedings come before the Court today in relation to an Application for Contravention (‘the said application’) filed by the applicant father (‘the applicant’) on 3 November 2021. The said application is supported by way of an affidavit filed on the same date.
The proceedings were set down for final hearing before me pursuant to directive orders that I made when it came into my theoretical docket on 1 March 2022. On that date, Mr Lynch appeared for the applicant and Ms Simpson appeared for the respondent mother (‘the respondent’). It was noted that the respondent would be opposing the said application, alleging that there had been no breach of the relevant orders at Trial, and by consent Count 1 of the said application was dismissed. The said application was otherwise listed for Trial on 1 July 2022 at 10:00am. A further direction was made for the parties to provide to the Court no less than seven days prior to the Trial date a list of any relevant authorities and a summary of the law with respect to each party’s respective positions.
Yesterday, a document entitled “Written Submissions of the Respondent” was provided to the Court and also to the applicant’s solicitor. When the matter was called on this morning, Ms Tabbernor, counsel for the respondent, conceded that the written submissions had been filed outside of the directions made by the Court in paragraph 3 of the order of 1 March 2022. The applicant for his part conceded that he had not provided any written submissions or lists of authority to the Court. In order to prevent the suggestion of there being any embarrassment to the applicant, and in order to avoid a consequent adjournment application and the Trial being delayed, it was agreed that I would disregard the written submissions that have been provided by the respondent, and that I would hear oral submissions made by counsel representing the applicant and the respondent without reference to that document, and that is how the preliminary issues have commenced and taken place across the course of the hearing today.
RESPONDENT’S APPLICATION FOR SUMMARY DISMISSAL
Ms Tabbernor, counsel on behalf of the applicant, makes an oral application for the said application to be summarily dismissed. The applicant’s position is that the said application has no possible chances of success and, for reasons that I don’t need to repeat for these purposes, should be summarily dismissed. It is also the respondent’s position that the application is being brought for purposes of punishment and for those reasons alone should be dismissed.
The applicant for his part opposes the summary dismissal application and points to an alleged longstanding non-compliance with the orders up and until the application was filed on 3 November 2021. The submission made on behalf of the applicant is that the applicant hopes to deter further alleged breaches of the order. In addition to some other procedural orders subsequent to findings regarding potential outcomes, the applicant seeks orders for make-up time for the respondent to undertake a parenting course, and indemnity costs.
In short however, the applicant opposes the application for summary dismissal. During the course of submissions from counsel, I raised the Court’s concern that many of the breaches contained in the said application dated as far back to 20 February 2020 and included many counts that occurred across 2020 and then into 2021. I have asked counsel to direct me as to why counts that are so old should be permitted to proceed at Trial in circumstances where there is well-established Full Court authority which confirms that contravention applications, whilst being quasi-criminal in nature, are designed to ensure ongoing compliance with Court order and are not to be used as a form of punishment.
DUPLICITY OF PLEADED BREACHES
There is an additional issue that arises in relation to alleged Breach 15 in the said application. The application is not paginated, but Breach 15 is pleaded as follows:
Breach 15
Order Breached
Order 22(a)
Date of Alleged Contravention
07/10/2021
3:00PM
Place
K Street, Suburb L
Statement of the alleged contravention
From around 3:00pm 21 October 2021 to around 1.00pm 23 October 2021 Ms Devine prevented me from spending time with B.
(see paragraphs 85 of the Applicant's affidavit).
At the commencement of the hearing, counsel for the respondent raised the issue of duplicity in relation to Counts 14 and 15 and correctly identified that each of those counts referred to the same date. During the course of submissions, solicitor for the applicant, Mr Lynch, confirmed that the date contained in Breach 15 is incorrectly pleaded and should in fact read 21 October 2021 and not 7 October 2021 as identified in the said application.
I deal with the application firstly to dismiss Breach 15 of the said application.
Ms Tabbernor on behalf of the respondent submits that the application as contained in Breach 15 must fail as it has not been particularised correctly. She further submits that these being quasi-criminal proceedings, the respondent is entitled to know with particularity the complaint made against her in this case given that she is required to, in a strict sense, plead as to whether or not she has breached the order, or if she is mounting an argument with respect to reasonable excuse. It was only during the course of submissions that the solicitor for the applicant conceded that the date contained in Breach 15 is incorrect. There was no formal oral application made at the commencement of the hearing to amend the application, and it became apparent, as I say, during the course of submissions that alleged Breach 15 as contained in the said application is incorrectly pleaded.
It has long been identified by this Court that strict compliance with pleadings needs to be adhered to, particularly in matters relating to multiple allegations of alleged breaches of orders. In the decision of Davis,[1] Asche J as he then was, confirmed:
[S]ince the proceedings [for civil contempt] are of a quasi-criminal nature, [the person charged] is entitled to the classic protections of an accused in a criminal trial. One of those protections I have already noted; he must be heard on his own behalf if he so desires. There are others. He must be informed with reasonable particularity of the matters alleged against him. He must have the right to cross-examine witnesses called against him and to call witnesses in his own case. He is entitled to be legally represented. He commences with the presumption of innocence which he does not lose until the case against him is proved beyond reasonable doubt. (See: Halsbury 4th Edition Volume 9 p 36 and Re Bramblevale (1970) Ch 128).[2]
[1] Davis & Davis (1976) FLC 90-050.
[2] Ibid 75,207.
In circumstances where it is conceded that the date contained in alleged Breach 15 is incorrect, I propose to dismiss that count given its lack of particularity with respect to the correct date identified further in the alleged count and contained in the affidavit.
Count 15 will therefore be dismissed.
EVALUATION OF SUMMARY DISMISSAL APPLICATION
I turn now to the balance of the counts contained in alleged Breaches 2 through to 14 of the said application, noting that breach 1 was dismissed by consent on 2 March 2022, and I propose to dismiss count 15 for the reasons that I have already provided.
This Court has long held the power to summarily dismiss all or part of any application that comes before it. Section 45A(4) of the Family Law Act 1975 (Cth) (‘the Act’) provides that the Court may dismiss all or part of proceedings at any stage if it is satisfied that the proceedings, or part, is frivolous, vexatious or an abuse of process.
Rule 10.09 of the Federal Circuit and Family Court (Family Law) Rules 2021 (Cth) (‘the Rules’) provides that:
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:
… after a response has been filed, if the party claims in relation to the application or response that:
(a) the court has no jurisdiction; or
(b) the other party has no legal capacity to apply for the orders sought; or
(c) it is frivolous, vexatious or an abuse of process; or
(d) there is no reasonable likelihood of success.
In this case, the application for summary dismissal is made orally given that the respondent has a right to silence and has not filed an affidavit with respect to the allegations made by the applicant. Furthermore, there is no contrary application to be filed by way of a response in answer to a contravention.
The ability of the Court to summarily dismiss of its own motion was considered by Watt J in the decision of Feranti & Connor (No. 2).[3] Under the heading “The law to be applied” on page 3 of his Honour’s judgment, and as set out in paragraph 8, Watt J stated as follows:
There was no dispute before me that the court has power to dismiss an application that it finds to be an abuse of process. The existence of an implied power to do so was acknowledged by the Full Court of this court in Tansell and Tansell (1977) FLC 90-307, at page 76,625:
It has been held that there is an inherent power in every court to stay or dismiss actions which are frivolous or vexatious or an abuse of the process of the Court. (Norman v Mathews (1916) 85 LJKB 857 (at p 859), per Lush J and 861 per Sankey J.:Metropolitan Bank v Pooley (1885) 10 App Cas 210, 214). The clearest expression of intention to the contrary would be required before it could be held that the Family Court of Australia did not have this inherent power to stay or dismiss frivolous, vexatious or abusive proceedings.[4]
[3] Feranti & Connor (No.2) [2007] FamCA 1447.
[4] Ibid [8].
In the decision of SCVG & KLD (No 4),[5] Gill J also dealt with the issue of an application for summary dismissal and, in particular, what may equate as an abuse of process. In paragraph 19 on page 4 of the decision, Gill J commented that he had been referred to the decision of Hearne & Hearne[6] which supports the capacity of the Court to prevent its processes being used as an abuse of process. There, Austin J said;
This Court has power to make orders that prevent an abuse of its process and protect its own functions (see Williams v Spautz (1992) 174 CLR 509 at 518). What amounts to an abuse of court process is insusceptible of a formulation comprising closed categories (see Batistatos v Roads & Traffic Authority (NSW) (2006) 226 CLR 256 at 265), however, one established category is where the use of the court’s procedures would bring the administration of justice into disrepute (see Batistatos at 267; Rogers v The Queen (1994) 181 CLR 251 at 286). The abuse of the court’s process may be apparent, not just from the institution or prosecution of the proceedings, but from procedural steps taken in the litigation, in which case the power to deal with the procedural abuse extends to the exclusion of the particular vexatious issue from the litigation (see Batistatos at 267).[7]
[5] SCVG & KLD (No 4) [2018] FamCA 593.
[6] Hearne & Hearne [2015] FamCAFC 178.
[7] SCVG & KLD (No 4) [2018] FamCA 593 [19].
What I take from those reported decisions is that it is impossible to define with any particularity or to categorise what is an abuse of process. What I also take from those decisions is that it is a matter for the Court in determining on the facts of each particular case as it presents itself what is an abuse of process.
In this case I have determined having read all of the material and after hearing submissions on behalf of each of the parties that the counts as they relate to alleged breaches which occurred in 2020 constitute an abuse of process and accordingly, should be summarily dismissed. I am satisfied that those counts do not assist the Court in the administration of justice and serve no utility.
Accordingly, Counts 2, 3, 4, 5, 6 and 7 of the application will be summarily dismissed.
ADMISSIBILITY OF EVIDENCE
This afternoon the Court is also required to deal with the issue of admissibility of paragraphs contained in the primary affidavit filed by the applicant on 3 November 2021 in relation to alleged counts of a final order made by Hannam J. In addition, the Court is required to rule on an affidavit that was filed by the father without leave on 1 July 2022 at 9:17 am (ACT Time).
The objections to evidence come about by virtue of objections filed by the respondent’s counsel yesterday, which were outside of the timeframe permitted pursuant to the orders made by the Court on 1 March 2022, but having been made, it is proper that the Court deals with those issues before the matter proceeds to final hearing. To their credit, the parties via their legal representatives this afternoon have agreed a number of matters and a number of objections have been withdrawn by Ms Tabbernor. There are remaining very few issues that the Court needs to deal with following on from those concessions, but the Court now proceeds to rule on the remaining issues plus making orders with respect to the strikeouts which can be made by consent.
In addition to those matters, I will then rule on the issue of the admissibility or otherwise of the affidavit filed by the father this morning, which as at the time of ruling is yet to be properly executed and put before the Court.
In relation to the objections to the affidavit of the applicant filed on 3 November 2021 and in light of the concessions that have been made this afternoon, I can proceed to strikeout the following paragraphs of that affidavit by consent and if I have not referred in full to some of the ones with objections, I will deal with them as part of my ruling. By consent I can strikeout from the said affidavit paragraphs 14, 16, 19, 24 second sentence, 25, 27, 28, 30 from the words “Ms Devine prevented the children spending time with me”, paragraph 31, paragraph 33 from the words “Ms Devine prevented the children spending time with me”, paragraph 34, paragraphs 36 to 40 inclusive, paragraphs 54 to 60 inclusive and paragraph 84 inclusive of the primary affidavit.
In relation to the remaining paragraphs that require ruling, the first being paragraph 15 from the last sentence and annexure. Paragraph 15 on page 4 of the affidavit is under the heading December 2019 – Breach of Order 22A. The pleading as contained in that affidavit relates specifically to Count 1 of the said application, which was dismissed by consent on 1 March 2022. Otherwise, that count is not before the Court and the affidavit as it directs itself to events across December 2019 underpin what was Count 1 which has now been dismissed. Accordingly, I decline to receive that evidence and therefore strikeout paragraph 15 of the said affidavit.
The next issue which requires ruling is paragraph 18 of the said affidavit. Paragraph 18 relates to Counts 2 and 3 of the said application for events which are alleged to have occurred across February to March 2020. Earlier today, I heard submissions and delivered an oral judgment striking out or summarily dismissing those counts as an abuse of process. Accordingly, paragraph 18 relates to counts of alleged contravention which are not before the Court for Trial and, accordingly, I decline to receive the evidence contained in paragraph 18. Therefore paragraph 18 of the said affidavit will be struck out.
The next ruling is with respect to paragraph 23 of the said affidavit as it relates to the last sentence and the annexure contained therein. Paragraph 23 relates to alleged breaches set out in Counts 4, 5, 6 and 7 as it occurs between October to December 2020. Paragraph 23 specifically refers to an alleged breach of the order during the period from 29 October 2020 to 31 October 2020. Earlier today, I delivered oral reasons summarily dismissing the counts relating to 4, 5, 6 and 7 as an abuse of process. Those counts are not before the Court and, accordingly, I decline to permit that evidence. Paragraph 23 of the said affidavit shall therefore be struck out.
The next contention relates to paragraph 48 of the said affidavit under the heading “Back Injury”. The paragraph in question refers to the fact that in August 2021 the father suffered a difficulty with his back requiring surgery on 10 August 2021. The father says that since his surgery, he has been unable to drive or work and that his partner Ms M has been driving to the changeovers. There is no affidavit produced from the father’s partner and consequently given the nature of these hearings, anything that occurred at handover must be given by the person who attended at the handover and hearsay evidence would not be permitted given the nature of these proceedings. I therefore decline to receive paragraph 48 given that it is not directly relevant to a count before the Court and there is no affidavit from the father’s partner Ms M with respect to those issues before the Court by way of this Trial. I therefore strikeout paragraph 48 of the said affidavit.
The next issue which requires ruling are paragraphs 88 to 93 of the said affidavit. Paragraphs 88 to 93 are directed to events which are said to have occurred on 20 October 2021 and in December 2020 and October 2021. Count 15 has now been dismissed. The last count remaining of the father’s application is with respect to events which are said to have occurred on 7 October 2021. Accordingly, the events referred to in paragraphs 88 to 93 of the said affidavit do not directly relate to any count before the Court in the said application and, accordingly, I decline to receive them. Paragraphs 88, 89, 90, 91, 92 and 93 of the said affidavit will therefore be struck out.
Finally, the Court is asked to rule on the affidavit filed by the father this morning at 9:17am (ACT Time). The background to this affidavit is that late submissions were provided by counsel for the respondent on the afternoon of 30 June 2022 which set out the respondent’s position with respect to the Trial to commence at 10:00am this morning. The applicant’s solicitor concedes that as a consequence of having received the Outline of Case and the written submissions, that an affidavit was hastily prepared on behalf of the applicant with such haste, it would appear, that it was not executed and was purported to have been signed in accordance with the COVID-19 Special Measures Practice Direction given that the applicant was apparently en route to his solicitor’s office at the time the affidavit was prepared.
Ms Tabbernor, counsel on behalf of the respondent, makes strong submissions that the affidavit filed by the applicant should not be permitted in circumstances where no leave has been granted by the Court for the filing of a further affidavit and, secondly, in circumstances where the respondent is entitled to understand the case put before her to receive advice and run her case in accordance with the evidence as it presents before the Court. Ms Tabbernor, in effect, is saying that the applicant cannot “pull himself up by his own bootstraps” by preparing an affidavit after receiving the respondent’s written submissions which attempts to remedy what might be seen as deficiencies in the applicant’s evidence before the Court. There is merit to the submissions made by Ms Tabbernor given the nature of these proceedings and the quasi-criminal nature with which they proceed before the Court.
In circumstances where the affidavit was filed without leave, was not properly executed given the haste with which it was prepared, but more importantly to my mind, given the nature of these proceedings and the fact that the respondent is entitled to understand the case that she is answering and where in circumstances the applicant is seeking, ultimately, for the respondent to be placed on a bond, in my view, it is inappropriate that the affidavit filed this morning to be received into evidence and accordingly I decline to do so.
CONCLUSION
For all of the above reasons, the Court makes the orders as set out at the commencement of this Judgment.
I certify that the preceding thirty-six (36) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of Judge Dickson. Associate:
Dated: 13 July 2022
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