Dobbs & Dobbs (No 2)
[2024] FedCFamC1F 349
•24 May 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Dobbs & Dobbs (No 2) [2024] FedCFamC1F 349
File number(s): MLC 8793 of 2015 Judgment of: CARTER J Date of judgment: 24 May 2024 Catchwords: FAMILY LAW – CONTRAVENTION – Where one count has been remitted in which it is asserted that the respondent delayed transferring his interest in a real property to the applicant – Where the respondent made an oral application that the one remaining count be struck out or summarily dismissed – Where there has been compliance with the order – Whether the Contravention Application is an abuse of process – Whether there are no reasonable prospects of success of the Contravention Application – Whether there are deficiencies in the pleading – Oral application dismissed. Legislation: Family Law Act 1975 (Cth) ss 45A, 112AD
Family Law Rules 2004 (Cth) rr 10.2, 22.38
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 10.09
Cases cited: Gravis & Major [2010] FamCAFC 239
In the marriage of Davis, C.K. and Davis, P.M. (1976) FLC 90-050
In the marriage of Tudor, H and Tudor, PJ (1992) FLC 92-273
King & King [2023] FedCFamC1A 36
Kirk v Industrial Relations Commission of New South Wales (2010) 239 CLR 531
Lindon v Commonwealth (No 2) (1996) 136 ALR 251
Tomlinson v Ramsey Food Processing Pty Ltd (2015) 256 CLR 507
Division: Division 1 First Instance Number of paragraphs: 80 Date of hearing: 29 April 2024 Place: Melbourne Counsel for the Applicant: Mr Kelly Solicitor for the Applicant: Cohen Lawyers Counsel for the Respondent: Mr Cenacchi Solicitor for the Respondent: TechComm Legal ORDERS
MLC 8793 of 2015 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS DOBBS
Applicant
AND: MR DOBBS
Respondent
ORDER MADE BY:
CARTER J
DATE OF ORDER:
24 MAY 2024
THE COURT ORDERS THAT:
1.The oral application by the respondent that count 3 of the Contravention Application filed 22 January 2020 be struck out and/or summarily dismissed is dismissed.
2.The matter be adjourned to 1 July 2024 for a one-day hearing commencing at 10.00 am.
3.By no later than 4.00 pm on 3 June 2024 the applicant file and serve a list identifying which paragraphs of her affidavits filed 22 January 2020 and 24 April 2024 upon which she seeks to rely at the hearing.
4.In the event that either party wishes to file written submissions, these shall be filed and served by 4.00 pm on 27 June 2024 and shall not exceed five pages.
5.No party file any further material other than as provided by these orders without leave of the Court.
6.If the respondent takes reasonable objection to the evidence of the applicant:
(a)any objections be taken no later than 4.00 pm on 10 June 2024 by service of written notice of such objections on the applicant;
(b)the applicant notify the respondent in writing no later than 4.00 pm on 17 June 2024 of which objections are the subject of agreement and which reasonably require determination; and
(c)the parties’ legal representatives who are instructed to appear at trial confer by no later than 24 June 2024 to endeavour to resolve any outstanding objections.
NOTING THAT pursuant to rule 12.15 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), an order for costs may be made on the initiative of the Court against a lawyer if the lawyer, or an employee or agent of the lawyer, has caused costs to be incurred by a party, or to be thrown away, because of (inter alia) unreasonable conduct or undue delay.
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 a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUSTICE CARTER
This matter has a complex and convoluted history. Each of the parties has filed numerous applications, in this Court and elsewhere.
The only matter that remains to be determined before me, having been remitted from the Full Court of this Court, is count 3 of the applicant wife’s (“the applicant”) Contravention Application filed 22 January 2020.
Count three is pleaded as follows:
3.Respondent Contravene Order 1 of 15 February 2018 by His Honour Justice Cronin. He continued to ignore Final Court Orders for 17 months causing me significant financial loss and emotional trauma.
(As per the original)
The orders made on 15 February 2018 were final orders. Order 1 provided that the respondent husband (“the respondent”) transfer to the applicant all of his interest in a parcel of real property (“the property”). The applicant and respondent were the registered proprietors of that property.
It is the applicant’s case that the respondent did not transfer his interest promptly in accordance with Order 1 of the 2018 final orders.
The order has ultimately been complied with. The respondent signed transfer documents at Court in July 2019 – being 17 months after the final orders were made. According to the applicant, the bank did not accept the respondent’s executed documents. I understand transfer documents were subsequently signed pursuant to s 106A of the Family Law Act 1975 (Cth) in around August 2020 and the property was finally transferred to the applicant in 2022 – after she obtained a withdrawal of caveat document from the respondent’s mother. The property has been subsequently sold by the applicant.
Before hearing the substantive Contravention Application, I must deal with the respondent’s preliminary oral application. He seeks that the one remaining count from the Contravention Application be:
(a)dismissed on the basis of estoppel;
(b)summarily dismissed as an abuse of process; or
(c)struck out on the basis of deficiencies in pleading.
I heard submissions on 29 April 2024 from the parties and reserved my decision.
For the reasons I now set out I have determined the applicant is not estopped from bringing the application. Nor is it appropriate to summarily dismiss or strike out the Contravention Application. I will list it before me for hearing on 1 July 2024.
BACKGROUND
As set out, final orders were made on 15 February 2018. On 15 March 2018 the respondent appealed the final orders. That appeal was heard on 28 August 2018, and dismissed on 10 September 2018, with the respondent to pay the applicant’s costs of $15,000. The respondent did not execute any transfer documents whilst his appeal was on foot.
The applicant asserts that following the appeal being dismissed the respondent still did not transfer his interest in the property to her – and that he deliberately delayed doing so, at significant detriment to her.
In the face of the alleged continuing non-compliance, the applicant filed a Contravention Application on 5 April 2019. The applicant drafted that application herself. She relevantly asserted as follows:
1.[The respondent] Contravene the Final Court Order 1 of the Family Court post trial dated February 2018 by His Honour Justice Cronin. He continued to ignore Court Order prior to his Appeal and even after his Appeal, caliming that His Honour was wrong, was dismissed by the High Court, he still continues to deliberately ignore Final Court Orders.
…
Statement of the alleged contravention
[The respondent] is in breach of Final Family Court Orders and deliberately refuses to comply per the evidence provided in the Affidavit…
(As per the original)
The 5 April 2019 Contravention Application was listed before the Court on 15 May 2019. At that time an order was made appointing a Registrar pursuant to s 106A of the Family Law Act to sign the necessary documents to effect a transfer of the property to the applicant. The matter was otherwise adjourned to 16 July 2019. I do not know why the applicant did not pursue the relief available to her as a result of the order made pursuant to s 106A of the Family Law Act.
On 16 July 2019 the matter was listed before Johns J. Amongst a number of orders made that day, the applicant was also given leave to withdraw her 5 April 2019 Contravention Application in circumstances where the respondent had executed at Court that day a number of documents to enable the transfer of the property to the applicant. There was no hearing of the Contravention Application on its merits.
The property was still not then transferred to the applicant. It is the applicant’s evidence that there were issues with the manner in which the respondent had signed the documents, and the bank refused to accept them.
The applicant then filed a further Contravention Application on 22 January 2020. This is the Contravention Application currently before the Court. As set out, count 3 in that contravention concerned the respondent’s asserted delay in transferring his proprietary interest in the property to the applicant.
There were a number of hearings – and appeals – with the Full Court ultimately determining in relation to count 3 that it needed to be remitted for hearing. There was a convoluted procedural history regarding this count summarised as follows:
(a)there were hearings in July and August 2020 before one judge, which resulted in a finding that the respondent had without reasonable excuse contravened the order requiring him to transfer his interest in the property to the applicant;
(b)the matter was transferred from that first judge to another judge. It appears it was intended the second judge would re-hear the matter. However, his Honour determined his role was to only to consider an appropriate penalty following the finding of breach and not to rehear the contravention application. His Honour imposed a penalty on the respondent in orders made 12 September 2023;
(c)the Full Court heard and upheld an appeal against the imposition of that penalty (determining that the respondent had been denied procedural fairness in the hearings in July and August 2020). That Full Court decision was delivered on 21 December 2023 in which count 3 was remitted for rehearing.
At the mention before me on 1 February 2024, the applicant initially asserted the hearing before me was in relation to the imposition of penalty only. She sought to rely on the findings made by the judge in August 2020 that the respondent had contravened the order.
That was plainly incorrect. The orders of the Full Court made on 21 December 2023 included an order that count 3 of the Contravention Application filed 22 January 2020 be “remitted for re-hearing”.
The applicant did agree, sensibly, that the hearing before me now was a re-hearing of count 3 of that Contravention Application.
Also at that mention the respondent indicated there were a number of preliminary matters he wished to raise. Orders were made for the filing of written submissions by the respondent in which he has sought the Contravention Application be dismissed and/or struck out. As set out, I must first deal with the preliminary issues raised by the respondent.
PRELIMINARY ISSUES
Estoppel
The respondent asserted the applicant should be estopped from pursuing count 3. He asserted that this count replicated the same asserted contravention that had been pleaded by the applicant in her Contravention Application filed 5 April 2019, which she subsequently withdrew when the matter was listed before Johns J on 16 July 2019.
It was asserted that in her Honour’s ex-tempore reasons for judgment, her Honour “dealt” with the Contravention Application. In those reasons, her Honour set out that, following discussions with the bench, “the issues in the [applicant’s] contravention application were able to be resolved”. Her Honour set out that the respondent had at Court executed a transfer of land, a discharge of mortgage and other documents necessary to enable the property to be transferred to the applicant. It was in those circumstances that the applicant sought leave to withdraw her Contravention Application.
It was asserted by counsel for the respondent that Johns J had recognised that the respondent had complied with Order 1 of the orders dated 15 February 2018, in that he executed the documents necessary for the transfer. It was argued that her Honour then granted leave to the applicant to withdraw her Contravention Application in light of that compliance – and thereby settled the question as to the existence of a right or obligation between the parties, quelling the controversy between them, as referred to by the High Court of Australia in Tomlinson v Ramsey Food Processing Pty Ltd (2015) 256 CLR 507 at [20].
I do not agree. The argument advanced by the respondent – that Johns J “necessarily resolved as a step in reaching the determination” (per Tomlinson v Ramsey Food Processing Pty Ltd at [22]) that the respondent was now in compliance with the order – did not address the issue of whether or not the respondent had contravened the order for the transfer of the property up until the time he executed his documents at Court on 16 July 2019. The question for the Court when hearing a Contravention Application is not whether the respondent remains in breach of an order, but whether they were ever in breach of the order.
More fundamentally, Johns J did not dismiss the Contravention Application. She did not proceed to hear it on its merits. The only order in relation to that application was the granting of leave to withdraw.
But what is the status of an application that has been withdrawn? Is the granting of leave to a party to withdraw – where there has been no substantive hearing or determination of the merit of the application – akin to striking out an application? If so, that would merely remove the matter from the list of cases pending for hearing but would not amount to a dismissal of the application; see In the marriage of Tudor, H and Tudor, PJ (1992) FLC 92-273 and King & King [2023] FedCFamC1A 36. Or is a withdrawal of an application the same as discontinuing an application?
The source of the Court’s power to grant leave to withdraw an application is not apparent from the Family Law Rules 2004 (Cth) as they then existed. The Rules as they then were, made provision for parties to withdraw offers to settle, and to withdraw admissions, but not specifically to withdraw applications.
A footnote to rule 22.38 (dealing with appeals) provided:
Note 2:For the requirements for withdrawing or discontinuing an application, see Part 10.2.
Part 10.2 was headed ‘Discontinuing a case’. In that part, the Rules provided that a party may discontinue a case by filing a Notice of Discontinuance.
Interestingly, the Dictionary to those Rules set out the following definition for the word “discontinue”:
discontinue, for a case, means to withdraw all or part of the case.
So, by withdrawing her application, did the applicant discontinue it? She did not file a Notice of Discontinuance in relation to her Contravention Application. She merely sought leave to withdraw it in circumstances where she believed compliance had occurred.
Whether a withdrawal amounts to a discontinuance or striking out, I am satisfied the application was capable of being reinstated where there had been no hearing of the application on the merits when the matter came before Johns J. The application was not dismissed by the Court. The Court did not make any finding that the respondent had or had not been in breach of Order 1 of the final orders requiring him to transfer the property to the applicant prior to him executing the documents for transfer at Court on 16 July 2019. That he executed documents at Court on 16 July 2019 did not determine the question of whether he had been in breach of the order between the making of those final orders on 15 February 2018 and the day on which he executed the documents at Court.
In the circumstances, no estoppel arises. The application was not dismissed, and there was no hearing on the merits. There has been no determination of whether the respondent was or was not in breach of Order 1. Accordingly, the applicant is at liberty to plead the same breach and seek the same relief in fresh proceedings, as she has done.
Summary Dismissal
Abuse of process
Alternatively, it was argued by the respondent that count 3 should be summarily dismissed as an abuse of process or on the basis that it has no reasonable prospect of success.
Section 45A(4) of the Family Law Act provides that:
(4)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.
Section 45A(2) provides, relevantly, that the Court can make a decree for one party against another if:
…
(b)the court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceedings or that part of the proceedings.
It is of course a serious matter to deprive a litigant access to the Court. Summary relief is to be “rarely and sparingly provided”; Lindon v Commonwealth (No 2) (1996) 136 ALR 251 per Kirby J at [1]. His Honour continued:
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 or is advancing a claim that is clearly frivolous or vexatious.
…
6.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 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.
(Citations and footnotes omitted)
The respondent did not comply with rule 10.09 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) – which provides that an application for summary dismissal on the basis that the application is frivolous, vexatious or an abuse of process must be made by filing an application in accordance with the approved form. However, the respondent’s written submissions filed 22 April 2024 made it abundantly clear that the respondent sought the summary dismissal of the one remaining count.
Counsel for the respondent did not refer to s 45A of the Family Law Act. His submissions focussed on his description that it was an abuse of process for the applicant “to make a claim or raise an issue in respect of her previously withdrawn allegations of contravention of orders”.
In his written submissions, counsel for the respondent referred to the High Court decision of Tomlinson v Ramsey Food Processing Pty Limited where their Honour’s observed that:
25.…[an] abuse of process is capable of application in any circumstances in which the use of a court's procedures would be unjustifiably oppressive to a party or would bring the administration of justice into disrepute. It can for that reason be available to relieve against injustice to a party or impairment to the system of administration of justice which might otherwise be occasioned in circumstances where a party to a subsequent proceeding is not bound by an estoppel.
(Footnote omitted)
Counsel essentially asserted that count 3 of the 22 January 2022 Contravention Application is in the same terms as count 1 of the 5 April 2019 application “which was resolved in the earlier proceeding” and accordingly amounts to an abuse of process.
Again, however, I note the question of whether or not the respondent contravened the final orders was not resolved by the applicant’s withdrawal of the earlier Contravention Application.
Counsel for the respondent also questioned the utility of the application. Ordinarily the purpose of contravention proceedings is to coerce a respondent to comply with orders, and to deter further breaches. Given there has now been compliance with the order, and all other applications have long been concluded, what is to be achieved by pursuing the contravention?
The applicant sets out in her Contravention Application that the respondent’s delay in transferring his interest in the property caused her “significant financial loss and emotional trauma”. Curiously, counsel for the applicant asserted that what needed to be heard was “the quantity of that loss”. That suggests some misunderstanding as to the sanctions the Court can impose in the event the contravention is proven.
As set out in s 112AD(2) of the Family Law Act, those sanctions are:
·to require the respondent to enter a bond;
·to impose a sentence in accordance with s 112AG;
·to fine a person not more than 60 penalty units; or
·to impose a sentence of imprisonment in accordance with s 112AE.
None of these sanctions would address the loss and trauma the applicant asserts she experienced. The Court has no power to provide the applicant with any compensation – although a costs order can be made if the Court considers there are circumstances that would justify such an order.
It is often observed that contravention proceedings are usually taken to ensure compliance. However, there are clearly circumstances in which it may be appropriate for the Court to conduct a hearing and if a breach is proven, impose a sanction even where there is no prospect of compliance – or where compliance has occurred but was delayed. For instance, where a respondent has disposed of funds that were subject to injunctive orders and there is no possibility the funds can be recovered. The utility in determining a Contravention Application in those circumstances is plain – and necessary to protect the Court’s processes.
Similarly, in this matter whilst the alleged contravention has been purged, there is utility in the application proceeding. In my view, such a proceeding is appropriate to protect the proper administration of justice. If parties are permitted to substantially delay compliance with orders with impunity, the potential impact on attitudes to Court orders, and the administration of justice could be significantly adversely affected.
Accordingly, I am not satisfied that the application is an abuse of process. There is utility in the application being heard and determined, and it is a proper use of Court time to do so. It is not unjustifiably oppressive to the respondent. Nor does the application bring the administration of justice into disrepute.
No reasonable prospect of success
Counsel for the respondent asserted the application could alternatively be dismissed on the basis that the applicant has no reasonable prospect of successfully prosecuting the Contravention Application. I have already referred to s 45A(2) of the Family Law Act regarding the power to dismiss an application in these circumstances.
It was argued by the respondent that at the time of the final orders, the respondent’s mother had a caveat lodged on the property. Accordingly, it was argued that even if the respondent had signed the transfer documents, the transfer could not have proceeded until the caveat had been removed. In that way, it was asserted that transferring the property to the applicant was not an outcome within the respondent’s power. It was asserted that the final orders as drafted were to achieve a particular goal – the transfer of the respondent’s interest in the property to the applicant – which he could not do on his own, given the registered caveat on title, and therefore he could not be in breach.
The parties were not in agreement as to whether the respondent’s mother had a caveatable interest at the time the final orders were made. She had previously loaned the parties monies – which the applicant said had been repaid (and therefore she had no caveatable interest), and the respondent said there continued to be monies owing. I understand the caveat on the property was not a matter that was brought to the attention of Cronin J when he made the final orders. I further understand that a withdrawal of caveat was provided to the applicant at some point by the respondent’s mother. I do not know whether she was or was not paid any funds in exchange for that withdrawal.
On the face of the applicant’s material, taken ‘at its highest’, the respondent did not execute, or attempt to execute any documents to give effect to the transfer of his interest to the applicant for 17 months after the order requiring him to do so was made. It cannot be said that the contravention as asserted has no reasonable prospects of success on the basis of that evidence of the applicant.
Further, it seems to me that whether the respondent could not have effected the transfer of his interest in the property to the applicant because of the existence of a caveat might be a matter that could go to the question of ‘reasonable excuse’ rather than providing a basis for summary dismissal of the application.
I am satisfied that there is a serious legal question to be determined – whether the respondent breached the order for transfer by not executing documents for 17 months after the orders were made – and that that question should be determined at trial.
Counsel for the respondent also touched upon the wording of the order made by Cronin J. In particular, he noted the order did not include a timeframe by which the respondent was to transfer to the applicant all his interest in the property – and arguably a contravention could therefore not be proven to have occurred at any particular time.
It seems to me that it is implicit in the final orders that the parties should do all acts and things to give effect to the orders within a reasonable time. I understand that as far as his Honour was aware when the final orders were made, the parties were the registered proprietors of the property. The respondent had not adduced evidence that there would be any impediment to what his Honour would have reasonably expected to be a straightforward transfer of an interest in a property from one spouse to the other.
At this point, it seems to me that there is merit in the view that absent a date, there is an expectation that a Court order will be complied with within a reasonable timeframe. Whether the timeframe by which the respondent is said to have complied was reasonable, or his alleged failure to do so promptly can be regarded as reasonable will no doubt be the subject of further submission.
In circumstances where there were limited submissions on this point, I am of the view that the issue as to the impact of the wording – if any – is an issue that can be dealt with by way of further submissions at the substantial hearing of the contravention.
It was further asserted that the applicant did not take steps to mitigate her loss. In that regard, counsel for the respondent referred to the s 106A order made by the Registrar on 15 May 2019. It was asserted the applicant could have utilised that order, and arranged for the necessary documents to be signed, thereby causing the property to be transferred. Again, that does not provide an answer to the applicant’s assertion that the respondent contravened the final orders by failing to sign the transfer documents for many months following the making of the final orders. The final orders had been made some 15 months before the s 106A order was made.
I am accordingly not satisfied that the applicant’s application has no reasonable prospects of success.
Deficiencies in the pleading
Lastly, the respondent asserted there are significant deficiencies in the way the alleged contravention has been pleaded.
It is correct that in contravention proceedings, proper particularisation is important. These are quasi criminal proceedings, and the applicant bears the burden of establishing that the order has been contravened. The consequences that can flow from a breach being proven are serious.
The Full Court in Gravis & Major [2010] FamCAFC 239 set out the common law requirements that a defendant must be told of the nature of the offence and the particulars of the act. Their Honours referred to the decision of the majority of the High Court in their decision of Kirk v Industrial Relations Commission of New South Wales (2010) 239 CLR 531. In that decision it was said that the Court needs to know the offence with which it is required to deal, and the accused needs to know “the substance of the charge which he or she is called upon to meet”, at [26]. That will include identifying “the essential factual ingredients of the actual offence”, at [26], although the facts pleaded need not be as extensive as those which might be provided if particulars are requested. Ordinarily, it is expected the asserted facts will specify the time, place and manner of the acts or omissions, and provide “reasonable particularity as to the nature of the offence charged”, at [26].
The Full Court said the contravention form mirrors the common law. The Contravention Application form requires applicants to:
State precisely what the respondent did or did not do which you allege amounts to a contravention, including the date, time and place, if applicable.
I note the inclusion of the words “if applicable”. Given the nature of the alleged contravention in this matter it would not be possible for the applicant to nominate a date, time or place for the respondent’s asserted ongoing failure to execute a transfer of the property into her name.
In my view the applicant’s asserted contravention is sufficiently clear. She asserts the respondent has contravened Order 1 – being the order requiring the respondent to transfer his interest in the property to the applicant. She said he has done that by continuing to ignore the orders. It is tolerably clear what the applicant is asserting to be the factual ingredients of the alleged contravention – being that the respondent did not take action to comply with the order and effect the transfer of his interest to her. She said that failure to act continued for 17 months – which given the date the orders were made brings the period of alleged contravention up to July 2019.
This is not a matter in which the applicant could be required to identify with specificity the date, time or place of the alleged contravention. It is asserted as an ongoing contravention by the respondent failing to take action.
This is also not a matter in which the respondent could reasonably assert he does not know what contravention is being asserted, or the particulars of that alleged contravention. Indeed, I am satisfied that the respondent has been, as is required, “informed with reasonable particularity of the matters alleged against him”; per Asche J in In the marriage of Davis, C.K. and Davis, P.M. (1976) FLC 90-050 at 75,207.
Accordingly, I have determined not to strike out the count on the basis that there are deficiencies in the pleading.
DETERMINATION
The transfer of the respondent’s interest in the property has long since occurred, and it is regrettable that the parties continue to engage with each other through the processes of this Court over so many years. The financial and emotional costs to the parties in doing so must be significant.
However, I am not satisfied that I can summarily dismiss the proceedings, or deal with the application other than allowing the count to be heard. As already set out, the Court must protect its processes – and that includes ensuring compliance with orders within a reasonable timeframe.
If the applicant is able to make out her case, then the respondent, without reasonable excuse will be found to have defied the authority of the Court for a protracted period. Of course, I have not pre-determined the outcome of the substantive hearing. The respondent may well be able to defend the proceedings. I may not be satisfied that there has been any breach. If a breach is proven, the respondent may be able to demonstrate a reasonable excuse.
At this juncture, however, I cannot be satisfied there is no reasonable prospect of success, that the application is an abuse of process, or that the deficiencies in the pleadings are such that the application should be struck out or dismissed.
Accordingly, the matter will be set down for hearing as soon as practicable.
Additional orders
I had previously directed the applicant to identify the paragraphs of her affidavit filed 22 January 2020 upon which she sought to rely. That affidavit covered a number of counts of alleged breach, of which only one is before me. The applicant did not do so.
Moreover, the applicant filed a further affidavit, on 24 April 2024 – just five days before the listing date – of some 84 pages. My orders will make it plain that no further material is to be filed without the leave of the Court. The respondent is of course not required to file any affidavit material and has elected not to do so.
In the course of submissions, counsel for the applicant conceded that count 3 referred only to an alleged breach persisting between the making of the final orders and 17 months thereafter. Accordingly, whilst the applicant asserted the breach perpetuated well after July 2019, that is not the charge as articulated before me.
I require proper identification of the paragraphs of the applicant’s affidavit material relevant to the alleged breach as pleaded by her. If there are any objections to the material on which the applicant seeks to rely those matters need to be discussed between counsel – and as far as possible resolved – prior to the matter being listed.
I certify that the preceding eighty (80) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Carter. Associate:
Dated: 24 May 2024
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