Emmett and Emmett (No. 2)

[2007] FamCA 669

FAMILY COURT OF AUSTRALIA

EMMETT & EMMETT (NO. 2) [2007] FamCA 669

FAMILY LAW - PRACTICE AND PROCEDURE - Application for summary dismissal - Dismissed

Family Law Act 1975

Applicant: MR EMMETT

Respondent: MRS EMMETT

File Number: TVF 2766 of 2000

Date Delivered: 13 June 2007

Place Delivered Townsville

Judgment of: Carter J

Hearing Date: 13 June 2007

Representation

Counsel for the Applicant: Mrs Pack QC

Solicitor for the Applicant: Wilson Ryan & Grose

Counsel for the Respondent: Ms McDiarmid

Solicitor for the Respondent: Harrington Family Lawyers

Orders

BY CONSENT

1. That the application by the husband for summary dismissal be dismissed.

FAMILY COURT OF AUSTRALIA AT TOWNSVILLE

FILE NUMBER: TVF2766/2000

MR EMMETT

Applicant

and

MRS EMMETT

Respondent

REASONS FOR JUDGMENT

1. On 22 November 2006 the Full Court allowed an Appeal by Mrs Emmett (who for convenience I will refer to as “the wife”) arising from orders made by his Honour Justice Monteith on 11 October 2004 and 14 February 2005.  In so doing their Honours ordered that those last-mentioned orders be set aside and that the proceedings be remitted for hearing in the Family Court of Australia at the Townsville Registry by a Judge other than the Honourable Justice Monteith.

2. The proceedings, which were remitted related both to child issues and also and substantially to an application pursuant to s 79A of the Family Law Act. The children's matters having resolved, the remaining matters for my consideration concern the question of whether or not orders made in relation to property should be aside pursuant to s 79A(1)(d) and if so whether the Court should vary or make new orders. There are also proceedings pursuant to which the wife seeks spousal maintenance and child support orders largely in the nature of substitution orders.

3. The matter commenced yesterday but has not proceeded in a timely fashion due to what I can only describe as a sad lack of regard for orders which were made to have the matter ready for trial. During the course of proceedings yesterday, I enquired whether the threshold question, that is, pursuant to s 79A could be dealt with separately. I would acknowledge that perhaps I did not express myself particularly elegantly. I was thinking of what is more elegantly put as a bifurcation process or splitting the proceedings. That did not find favour with Senior Counsel for the husband who indicated that cross-examination of the wife was felt to be necessary.

4. Accordingly the proceedings continued yesterday after a fashion.  They concluded with my directions for the parties to file or for Counsel and/or the instructing solicitors to prepare a number of documents to assist the Court and they included an outline or a Summary of Argument.  There are other matters, which were initially raised this morning which I need not trouble myself with at the moment.  But eventually a situation was reached where Senior Counsel for the husband made it clear that whatever had been the interpretation of the enquiry I made yesterday, she was desirous of bringing an Application for Summary Dismissal.

5. Some forewarning of that had been given but in all the circumstances it seemed eminently reasonable in my mind for Counsel for the wife to be given some little time to research the issue and it was a modest amount of time in all the circumstances that was sought.

Background

1. The background of the case for present purposes needs only to be briefly referred to.  There are three children of the marriage of the parties.  Again for reasons of convenience I will refer to Mr Emmett as “the husband”.  So going back there were children of their marriage who range between 13 and 16 years of age.  Orders were made by consent in the year 2001 and pursuant to those orders the three children who are all boys were to reside with their father and property orders were also made.  That is a very short summary of the very detailed orders that were made.

2. Pursuant to the orders, which were made on 11 September 2001, the contact as it was then called, that the children would have with their mother was quite limited.  It was indeed to be supervised save by agreement between the parties or subject to further order of the Court.  Subsequent to those orders there were further proceedings between the husband and the wife including those, which were the subject eventually of the Appeal to the Full Court but relevantly for present purposes final orders were made earlier this year pursuant to which all three children now live with their mother.

3. The ground upon which the wife relies as I have said, is s 79A1(d) which, should the court be satisfied that:

   “In the circumstances that have arisen since the making of the order being circumstances of an exceptional nature relating to the care, welfare and development of a child of the marriage, the child or, where the applicant has caring responsibility for the child (as defined in subsection (1AA)), the applicant, will suffer hardship if the Court does not vary the order or set the order aside and make another order in substitution for the order, the Court may, in its discretion, vary the order or set the order aside and if it considers appropriate, make another order under s 79 in substitution for the order so set aside.”

4. The Full Court extensively considered the principles relevant to Applications for Summary Dismissal or Stay in Bigg v Suzi (1998) FLC ¶92-799. The Full Court in that instance comprised Barblett DCJ and Lindenmayer and Finn JJ. At par 5.5 their Honours said:

   “5.5     That this Court has the necessary inherent power to dismiss or permanently stay an application which cannot succeed, was recognised by Nygh J. in Aldred (1986) FLC ¶91-753 and affirmed by the Full Court in Spellson (1989) FLC ¶92-046. In Aldred, in addition to referring to the authorities concerning the inherent powers of this Court, his Honour referred to Halsbury’s Laws of England 4th Edition Vol 37 Practice and Procedure, paragraph 435, where it is said:

   ‘So under its inherent jurisdiction the court may strike out the whole or part of the endorsement on a writ or stay or dismiss an action which is frivolous or vexatious or an abuse of process or which must fail or which the plaintiff cannot prove, and which is without a solid basis ...’

   5.6      It is also stated in Halsbury that the power to strike out, stay or dismiss under the court's inherent jurisdiction is discretionary.

   5.7      Further, pursuant to s 38(2) of the Act, the Family Court may, where its own rules are insufficient, apply the rules of the High Court. Included in those latter rules is O.26 r.18 which is as follows:

   ‘(1)    The Court or a Justice may order a pleading to be struck out on the ground that it does not disclose a reasonable cause of action or answer.

   (2)      In that case, or in case of the action or defence being shown by the pleadings to be frivolous or vexatious, the Court or a Justice may order the action to be stayed or dismissed, or judgment to be entered accordingly, as is just.’

   5.8      In Aldred (supra), Nygh J. relied upon s.38(2) of the Act to draw upon O.63 rr.1 and 2 of the High Court Rules, which are as follows:-

   ‘1.      The Court or a Justice may, at any time after the institution of a proceeding, direct a stay of proceedings, either as to the whole or part of the proceeding or as to any proceedings under a judgment or order given or made in the proceeding.

   2.       An application to stay proceedings on the ground that there is not a reasonable or probable cause of action or suit, or that the proceeding is vexatious and oppressive or is an abuse of the process of the Court, may be made at any time and whether the plaintiff does or does not admit the allegations of fact, if any on which the application is founded.’

   5.9      It will be seen that the powers in O.26 r.18 and O.63 rr.1 and 2 are discretionary, and that in the former those powers include a power to dismiss an action where either a pleading is "struck out" or the action is shown to be frivolous or vexatious.

   5.10     The 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 O26, r18 or in the inherent jurisdiction of the Court, is rarely and sparingly provided;

   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 in advancing a claim that is clearly frivolous or vexatious;

   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. 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 O26, r18, 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 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. A question has arisen as to whether O26, r18 applies to part of a pleading. However, it is unnecessary in this case to consider that question because the Commonwealth's attack was upon the entirety of Mr Lindon’s statement of claim; and

   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.’

   It was clearly Kirby J’s ‘guiding principle’, enunciated in point 6 of his above-quoted dictum, that the trial Judge had in mind in making the statement which we have quoted in paragraph 4.7, hereof.”

5. In Pelerman (2000) FLC ¶93-037 a differently constituted Full Court summarised the principles in Bigg v Suzi in the following manner:

   “(a)     The power for summary dismissal is a discretionary one.

   (b)      Relief ‘is rarely and sparingly provided’.

   (c)      The parties seeking summary dismissal must show that the application is ‘doomed to fail’ or as has been otherwise described ‘that the opponent lacks a reasonable cause of action or is advancing a claim that is clearly frivolous or vexatious’.

   (d)      A weak case or one that is unlikely to succeed is not ‘sufficient to warrant termination’.

   (e)      ‘If there is a serious legal question to be determined, it should ordinarily be determined at a trial.’

   (f)       ‘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 pleadings.’ ”

6. The Family Law Rules 2004 also make provision for applications for summary orders in r 10.12. Relevantly, r 10.12 provides for such an application where a party claims that an application or response is frivolous, vexatious or an abuse of process or that there is no reasonable likelihood of success. The Explanatory Statement describes this application as one where it is claimed that there is no case to answer. Further and relevantly, that it was considered that this process should only be used when the respondent has no realistic prospect of success.

7. The authorities also make it clear that an Application for Summary Dismissal must be determined on the basis only of the material put forward by the respondent to that application, in the present case, the wife (see Lindon v The Commonwealth of Australia (No. 2)) where Kirby J pointed out that the party seeking the relief must show that it was clear on the face of the opponent's documents, that the opponent lacked a reasonable cause of action or was advancing a claim that was clearly frivolous or vexatious;  see also par 6.31 of Bigg v Suzi where the Full Court observed that the wife (who was the applicant for the summary dismissal) had no right to adduce any evidence at that summary hearing to contradict the evidence of the husband or to seek to contradict any inference which it might be submitted should be drawn from that evidence;  see also Beck (2004) FLC ¶93-181 where the Full Court comprising Ellis, Finn and Chisholm JJ also applied this principle.

8. In summary therefore and in the absence of any opportunity of

   
   

   cross-examination (which is the situation here), and unless the version of facts put forward by the respondent to the Application for Summary Dismissal is inherently incredible, it seems clear that it is incumbent upon the Court to proceed on the basis that the respondent’s version of the facts would ultimately be accepted on the trial of the action (see Webster v Lampard (1993) 177 CLR 598 at 608).

9. Reference should also be made to Ferrall and McTaggart (trustees for the Sapphire Trust) and Ors v Blyton (2000) FLC ¶93-054 where Nicholson CJ, Lindenmayer and Kay JJ held at par 98:

   “98.     Counsel for the respondent, we think correctly, pointed out that while the Court has jurisdiction summarily to dismiss or stay an application, its exercise is reserved for a case in which it can be demonstrated that the substantive application cannot possibly succeed.”

10. In Beck, the Judge at first instance, Holden J, had set out and identified the principles which should be applied to the application before him and the Full Court in Beck sets that out in par 17 of their Reasons for Judgment.  His Honour drew upon a combination of the principles in Bigg v Suzi and Pelerman.  In par 18 in Beck, the Full Court noted that there was no challenge to his Honour’s formulation of the test and therefore felt it unnecessary to further discuss the principles in Bigg v Suzi and Pelerman.

11. They did however set out certain passages from the joint judgment of Mason CJ, Deane and Dawson JJ in Webster v Lampard:

    “… The power to order summary judgment must be exercised with ‘exceptional caution’ and ‘should never be exercised unless it is clear that there is no real question to be tried’.  As Dixon J commented in Dey v Victoria Railways Commissioners (1949) 78 CLR 62 at p 91:

    ‘A case must be very clear indeed to justify the summary intervention of the Court to prevent a plaintiff submitting his (or her) case for determination in the appointed manner by the court with or without a jury.  The fact that a transaction is intricate may not disentitle the court to examine a cause of action alleged to grow out of it for the purpose of seeing whether the preceding amounts of an abuse of process or is vexatious.  But once it appears that there is a real question to be determined whether of fact or law and that the rights of the parties depend upon it then it is not competent for the court to dismiss the action as frivolous and vexatious and an abuse of process.’ ”

12. In Bain Pacific Associations and Ors & Kelly and Ors (2000) FLC ¶ 93-270 the Full Court comprising Bryant CJ, Warnick and May JJ added to those principles which I have noted and accepted the proposition that apart from material in the case of the respondent to an Application for Summary Dismissal the Court may have regard to relevant non-contentious facts even if raised by the applicant for summary dismissal. That has not been the situation in the present case.

Discussion

1. The husband's application has its foundation on the need for the wife to prove that circumstances have arisen since the order was made, which are exceptional which relate to the care, welfare and development of the children;  and that she would suffer hardship.  The material in the wife's affidavit, which covers those areas commences at par 10 and continues through to par 48.

2. I agree that as an overview of those paragraphs, the wife is asserting that she suffered hardship in the sense of the change of residence bringing upon her financial impost.

3. The other hardship, which the wife claims to have suffered, incorporates the costs of the support of the children and the restraints that the caring of those children bring to her earning capacity.  The question is then asked rhetorically, do such facts amount to exceptional circumstances?

4. As was correctly submitted by Senior Counsel for the husband, the Full Court has given guidance in Simpson v Hamlin (1984) FLC ¶ 91-576. It is clear from that case that firstly what amounts to exceptional circumstances is very much a question of fact and degree. Further, a change of residence of children does not of itself constitute exceptional circumstances. The Full Court spoke with evident approval of a change of such a nature being one within ordinary circumstances and one of the so called, vicissitudes of life.

5. Further reference was made to the decision of Gee J in the matter of Sandrk (1991) FLC ¶ 92-260. Following Simpson v Hamlin, Gee J noted that the occurrences of a change in responsibility for the daily care and control of children after the making of a property order under s 79 could not of itself be held to be an unusual circumstance.  He, too, noted that what amounts to exceptional circumstances is very much a question of fact and degree.

6. In Sandrk and also in Simpson v Hamlin a significant feature of the change was that it occurred unexpectedly and quickly after the making of the property order so it could not have been regarded as within the reasonable contemplation or expectation of the parties.  In Simpson v Hamlin it was seen by Lambert J at first instance to be significant and the Full Court seemingly agreed with his Honour in that respect.

7. They did not however, determine that whether or not the change occurred unexpectedly or rapidly after orders had been made, was of itself determinant of the matter.

8. Clearly in the present case, the change was not shortly after the making of the property order.  That in its own right could be said to give rise to a reasonable argument at law, which would need to be determined at trial.

9. Senior Counsel for the husband then looked at what really is a question of discretion, that is to say, if one is satisfied that there has been an exceptional circumstance and if one is further satisfied that hardship has and/or will be caused then one needs to see hardship of such a serious nature that it would lead inexorably to the setting aside of the orders, whereas in the present case, for example, there are other orders which can be made which might redress the situation.

10. She may well be right in the sense that if one gets to that stage then the situation may be better addressed by making orders for spousal maintenance and/or child support, but it could not be said that that raises anything other than an arguable case.  It almost indeed imports the necessity for this case to go to trial.

1. At this early stage of the proceedings I am tentatively of the view that the wife has a weak case but it is not a situation where I find that there is no arguable case or that there is no case which needs to be determined by the Court, either as to law and as to the fact.

2. In those circumstances the Application for Summary Dismissal will be refused.

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Carter.

Associate:                 

Date:    6 July 2007

IT IS NOTED that this judgment for all publication and reporting purposes be referred to as EMMETT & EMMETT