HAHNS & HOLGRUM
[2010] FMCAfam 1038
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| HAHNS & HOLGRUM | [2010] FMCAfam 1038 |
| FAMILY LAW – Children – contravention of Parenting Orders – child aged 14 years living with mother. PRACTICE & PROCEDURE – Summary dismissal – disposal by summary dismissal – application for summary dismissal of Contravention Application – whether orders or notations – whether Orders enforceable – whether evidence sufficient to establish a case – whether applicant has no reasonable prospect of successfully prosecuting the claim. |
| Family Law Act 1975, Part VII Division 13A, s.70NEA Federal Magistrates Court Rules 2001, r.13.10 |
| In the Marriage of Prior [2002] Fam CA327; (2002) 30 Fam LR 72; FLC 93-105 Bigg v Suzi (1998) 22 Fam LR 700; FLC 92-799 Pelerman & Pelerman [2000] Fam CA881; (2000) 26 Fam LR 505; FLC 93-037 Ferrall v Blyton (2000) 27 Fam LR 178; FLC 93-054 Lindon v Commonwealth (No 2) (1996) 136 ALR 251 |
| Applicant: | MS HAHNS |
| Respondent: | MR HOLGRUM |
| File Number: | SYC 2510 of 2008 |
| Judgment of: | Scarlett FM |
| Hearing date: | 20 September 2010 |
| Date of Last Submission: | 20 September 2010 |
| Delivered at: | Sydney |
| Delivered on: | 29 October 2010 |
REPRESENTATION
| Applicant: | The Applicant appeared in person |
| Counsel for the Respondent: | Mr Moylan |
| Solicitors for the Respondent: | Derham Houston |
ORDERS
The application by the Respondent for summary dismissal of the application filed by the Applicant on 7 May 2010 is refused.
The name of the Applicant formerly [omitted] is now MS HAHNS.
IT IS NOTED that publication of this judgment under the pseudonym Hahns & Holgrum is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 2510 of 2008
| MS HAHNS |
Applicant
And
| MR HOLGRUM |
Respondent
REASONS FOR JUDGMENT
Application
This is an application by the Mother of a girl called [X] to deal with the Father for contravention of orders made in this Court on 26th March 2009. The Father seeks summary dismissal of the application, on the bases that:
a)What is sought to be enforced by the application are not orders of the Court at all, but merely notations by the Court; and
b)Even if the notations are enforceable, the evidence in support of the application does not support a breach.
The Mother also brought another application in respect of two orders. This application was finalised by consent orders involving the Father giving an undertaking to the Court. There is no doubt that the undertaking is enforceable.
Background
The child who is the subject of the Orders made by the Court is a girl called [X] who was born [in] 1996. She is therefore 14 years old. There is no issue that she has a mild intellectual disability with diagnoses of Attention Deficit Hyperactivity Disorder, Oppositional Defiant Disorder and speech and language delays.[1] The Mother has told the Court that the child is 14 years old with the speech of an eight-year old. The child’s behaviour has been described as “challenging”. The Mother’s only support is her current husband.
[1] Family Consultant Memorandum to Court 10 June 2010.
Orders were made by consent in the Family Court of Australia on
21st October 2002 providing that the parties’ two daughters were to reside with the Mother. The older child is now an adult.
There have been various contravention proceedings before this Court since May 2008, according to the Court file. On 26th March 2009, a Federal Magistrate made these Orders and Notations:
UPON NOTING THAT in addition to previous Orders:
a) The Father continue to meet the costs of Dr P being $65.00 each fortnight with such arrangements to be made directly between the Father and Dr P;
b) The Father will ensure he speaks with Ms P at least every 6 months in relation to [X]’s progress, with the Mother to provide the necessary authority for that to occur;
c) The Father will pay by way of contribution to [X]’s speech therapy the sum of $400.00 each year with such sums to be paid in instalments by arrangement with Ms P; and…
d) The Mother will decide whether the contributions made by the Father to [X]’s speech therapy will be applied to her current expenses or in whole or in part to [X] having additional speech therapy.
THE COURT ORDERS THAT:
1. All outstanding applications otherwise be dismissed and the matter removed from the list of cases awaiting finalisation.
The current application
The contravention application brought by the Mother claims contraventions by the Father of a) and c) above.
The first count claims that at 3:30pm on 15th December 2009 at 3:30pm:
Dr P declined to attend appointment re-occupational therapy for [X] as the Respondent Mr Holgrum declined to pay Dr P.
This is described as a contravention of a) above.
The second count claims that at 4:30pm on 18th February 2010:
The Respondent Mr Holgrum declined to pay for any further speech therapy for the said child [X].
This is described as a contravention of c) above.
The application is supported by an affidavit of the Applicant sworn on 21st April 2010.
As to the first count, the Applicant deposes:
On 11.12.09 I received a letter from Dr P stating that [X] could not have any further occupational therapy sessions, due to the Respondent Mr Holgrum not paying for the scheduled appointment booked for 15.12.09 (see annexure “B” pages one and two). Annexure “B” page two states why the Respondent
Mr Holgrum believes why he should not pay.
On 14.12.09 I phoned the Respondent Mr Holgrum and stated “What is happening with [X]’s occupational therapy?” only to be informed by Mr Holgrum whom[2] stated that “that’s between me and the O.T. and I don’t have my diary on me”. I stated to the Respondent “it is my business it is my daughter’s welfare”. The Respondent hung up on me.
It seems the Respondent Mr Holgrum attempts constantly to use avoidance tactics when it comes to paying for anything as far as his daughter is concerned.
During Dr P’s previous visit with [X] (see annexure “D”) it was recommended [X] receive psychological intervention weekly. This has also been recommended by Dr C our local doctor that [X] requires ongoing therapy from a psychologist (see Annexure E). With ongoing psychology there are continual costs involved even with a “Mental Health Care Plan” (see Annexure “F”). The reasons [X] requires ongoing psychological intervention are outlined in “Annexure G” behaviour management plan attended by the behaviour intervention team at [M].[3]
[2] sic
[3] Affidavit of Ms Hahns dated 21.4.2010 pages 1 and 2.
Annexure “B” consists of two documents:
a)An apparently undated letter from Dr P headed “Dr P Occupational Therapy”:
b)A printout of an email conversation between Dr P and the Respondent.
Annexure “C” is a Final Notice from Dr P to the Respondent.
Annexure “D” is a memorandum from Dr P (undated).
Annexure “E” is a copy of a letter from Dr C dated 21st December 2009.
Annexure “F” consists of two documents:
a)a memorandum from Ms G, psychologist, dated 20th April 2010; and
b)A letter dated 14th April 2010 from [omitted].
Annexure “G” is a four-page document headed “Reactive Strategies” written by Mr L of the [M] Behaviour Intervention Team dated 29/1/10.
As to the second count, the Applicant deposes:
On the 18.2.10 at [X]’s scheduled speech therapy session at 4.30pm Ms P the speech therapist informed Mr Holgrum has no intention of paying any further speech therapy for his child. Cost of speech therapy in $55.00 weekly (Annexure “I”). On the 22/2/10 at 4.05pm I phoned the Respondent Mr Holgrum and stated “Whats[4] happening with [X]’s speech therapy?”
Mr Holgrum stated “I don’t know what your talking about”. I stated to the Respondent “Well its quite concerning what the speech therapist told me last Thursday”. Mr Holgrum stated “Well the Court said it was only for twelve months and I’ve paid all I’m going to pay”. I said to Mr Holgrum “Its ongoing your daughter is only thirteen years old”.
[X] requires regular speech therapy as recently an assessment was performed by Ms P and [X] is reading currently at a Year Three level and is in Year 8 at school. If the Respondent
Mr Holgrum had been in regular contact with Ms P as per notation orders dated 26/3/09 annexure “A” b) he would be aware of same. [X] is currently attending speech therapy fortnightly, as currently I am not able to afford speech weekly. Annexure “H” is [X]’s recent speech assessment.[5]
[4] sic
[5] Affidavit of Ms Hahns 21.4.2010 at page 3
Annexure “I” is a handwritten note from Ms P, Speech Pathologist, dated 19/4/10.
Annexure “H” is a document entitled “Speech Pathology Report” by Ms P dated 16 April 2010.
Submissions
The Respondent’s solicitor, Mr Moylan, submitted that the application should be summarily dismissed, on these grounds;
a)That what was sought to be enforced were not Court orders at all, but merely notations, and therefore unenforceable by means of a contravention application under part VII Division 13A of the Family Act 1975; and
b)In the alternative, the evidence in support of the application was insufficient to establish a case on either of the two counts.
As to the first leg of the submission, it was put that the very wording of the Order of 26 March 2009 indicated that a) – d) inclusive were not intended to operate as enforceable orders of the Court, as the preamble reads:
UPON NOTING THAT in addition to previous Orders:
Further, after a) to d) are set out, the Order goes on to state:
THE COURT ORDERS THAT:
Thus, it is submitted, the matters contained in a) to d) are merely matters that the Court noted at the time and were not intended to be Orders that either party would be able to enforce.
As to the second leg of the submission, Mr Moylan put to the Court that the Court could not find a contravention on the first count of the application, that Dr P declined to attend the child. Further, Mr Moylan referred to Annexure “D” to the application, the undated[6] memorandum from Dr P. In that document, Dr P says:
[6] The memorandum refers in its text to an occupational therapy session on 1st December (presumably 2009) so it was clearly written after that date.
Through assessment and observation, it has become clear that [X] no longer requires occupational therapy…
Recommendations
· [X] requires psychological intervention once a week
· The therapy should be “Cognitive Behavioural Therapy”
· Occupational therapy should now cease
As to the second claim in the application, that the Respondent declined to pay for any further speech therapy for the child, Mr Moylan submitted that the notation c) provided for a global amount of $400.00 to be paid, such sums to be paid in instalments by arrangement with
Ms P. The arrangement with Ms P would in effect be an order binding a third party, which is not an order the Court would make.
The Applicant concentrated on the factual aspects of the matter, telling the Court that the child needs ongoing speech therapy, as she is
14 years of age but has the speech of an eight-year old. All she seeks is for the responsibly for the child, both financially and emotionally, which was what the Court was trying to achieve in making the orders of 26 March 2009.
The Applicant further told the Court that the child has ADHD, Oppositional Defiant Disorder and challenging behaviour. She has no family support apart from her current husband; there are no grandparents available. She claimed that the Respondent only saw the child because of the earlier court proceedings requiring him to have contact with her.
In reply, it was submitted that these are not child support proceedings.
Summary dismissal
The Court has power under Rule 13.10 to dispose of a matter by way of summary dismissal:
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; or
(b)the proceeding or claim for relief is frivolous or vexatious; or
(c)the proceeding or claim for relief is an abuse of the process of the Court.
In family law proceedings, the Full Court of the Family Court has made it clear that summary dismissal is not to be applied lightly. The Full Court (Nicholson CJ, Buckley and Kay JJ) held in the case of In the Marriage of Prior[7] at [43]:
The principles governing summary dismissal have been considered in Bigg v Suzi, In the Marriage of Pelerman 26 Fam LR 505; (2000) FLC 93-037 and Ferrall v Blyton (2000) 27 Fam LR 178; (2000) FLC 93-054. These are that the Court will only exercise its discretion to summarily dismiss an application in circumstances where it can be demonstrated that the substantive application cannot possibly succeed.
[7] [2002] Fam CA 327; (2002) 30 Fam LR 72; FLC 93-105
In Pelerman & Pelerman[8] the Full Court of the Family Court (Ellis, Lindenmayer and Rose JJ) stated the relevant principles at [46]:
It is well established that the following principles apply as were recently reviewed and stated in Bigg v Suzi:
(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”.
[8] [2000] FamCA881; (2000) 26 Fam LR 505; FLC 93-037
Conclusions
The Respondent submits that a) to d) of the Orders of 26 March 2009 are not orders of the Court and are therefore not enforceable. If that were the case, then the application would indeed be doomed to fail and it would be appropriate for the Court to exercise its discretion of summary dismissal.
However, despite the use of the words “UPON NOTING THAT” I am not persuaded that a) to d) lack enforceability.
It is not readily apparent, with respect, why paragraphs a) to d) were framed as notations. Normally, in law, a Court uses a notation to record the existence of a fact or a state of affairs. It is clear, however, that each of these paragraphs either imposes an obligation on a party or confers an entitlement on a party:
a) The Father continue to meet the costs of Dr P being $65.00 each fortnight with such arrangements to be made directly between the Father and Dr P;
b) The Father will ensure he speaks with Ms P at least every 6 months in relation to [X]’s progress, with the Mother to provide the necessary authority for that to occur;
c) The Father will pay by way of contribution to [X]’s speech therapy the sum of $400.00 each year with such sums to be paid in instalments by arrangement with Ms P; and
d) The Mother will decide whether the contributions made by the Father to [X]’s speech therapy will be applied to her current expenses or in whole or in part to [X] having additional speech therapy.
Courts do not act in vain.
If a) to d) above were not intended to have some force, what would be the point of recording these matters at all? Why would it be necessary to specify a fortnightly amount to be paid to Dr P, a requirement to speak with Ms P every 6 months or a specific sum of $400.00 to paid each year by way of contribution to the child’s speech therapy, if the Father were to be free to ignore these obligations the moment he left the Court?
The four paragraphs referred to are preceded by the words:
UPON NOTING THAT in addition to previous Orders:
With respect, the four paragraphs should more properly have been framed as consent Orders. However, despite the infelicity of the language used, in my view the context and content of the paragraphs show that the Court intended to impose an obligation on the Father.
Accordingly, the Respondent’s argument that paragraphs a) and c) are not enforceable has not been made out.
The second leg of the Respondent’s submission is that the evidence in support of the application is insufficient to establish a case on either of the two counts.
The first count alleges that at 3:30pm on 15/12/09:
Dr P declined to attend appointment re-occupational therapy for [X] as the respondent Mr Holgrum declined to pay Dr P.
The Applicant relies on the documents referred to in [12]-[18] above in support of her case. It would appear that only Annexures “B” to “D”, which all emanate from Dr P, are relevant. The material in Annexures “F” and “G” are not relevant to the claim.
The evidence from Dr P is contradictory. The Applicant claims that the Respondent declined to pay Dr P for his services, as he was obliged to do under a) in the Orders of 26 March 2009. On the one hand, Dr P states in Annexure “B”, his undated memorandum to the Applicant:
I am unable to see [X] any more as Mr Holgrum has failed to pay his bill and I have begun debt collection proceedings. I have included the unpaid bill and copies of the correspondence he has sent as to why he believes he should not pay. These may be useful next court appearance.[9]
[9] Annexure “B”
Annexure “C” is a tax invoice headed “Final Notice” addressed to the Respondent from Dr P, showing an amount due of $135.00.
On the other hand, the memorandum from Dr P marked Annexure “D” states:
Through assessment and observation, it has become clear that [X] no longer requires occupational therapy.
It goes on to recommend that (inter alia);
Occupational therapy should now cease.
In my view, the material from Dr P is sufficient to establish a case that:
a)The Respondent has not paid the sum of $135.50 to Dr P; and
b)Dr P believes that no further occupational therapy is necessary.
Accordingly, as the obligation imposed on the Respondent by a) of
26 March 2009 was to continue to meet the costs of Dr P being $65.00 each fortnight, I am satisfied that there is evidence to show that the Respondent did not do so, to the extent that he failed to pay an amount of $135.50 owing to Dr P. The fact that there is no further need for the child to continue to see Dr P, which would terminate the ongoing commitment to pay the sum of $65.00 per fortnight, does not mean that the Father did not meet his obligation to pay an amount that had already been incurred.
Thus, it has not been established that the Applicant has no reasonable prospect of successfully prosecuting the claim that the Respondent failed to pay Dr P.
The Applicant’s second claim is of a breach of c) of the Orders of
26 March 2009, which said:
The Father will pay by way of contribution to [X]’s speech therapy the sum of $400.00 each year with such sums to be paid in instalments by arrangement with Ms P;
The claim is that at 4:30pm on 18/2/10:
The Respondent Mr Holgrum declined to pay for any further speech therapy for the said child [X].
The Applicant relies on the documents referred to in [19] to [21] above in support of this claim. Essentially, the evidence is that:
a)The Applicant claims that Ms P told her that the Respondent had no intention of paying for any further speech therapy;
b)The Applicant claims that, when she telephoned the Respondent, he said to her “I don’t know what you’re talking about…Well the Court said it was only for twelve months and I’ve paid all I’m going to pay”;[10]
c)A speech pathology report from Ms P expresses the view that the child needs more therapy;[11] and
d)Ms P has written a memorandum saying “[X]’s therapy fee is $55.00 for a half hour session. She would benefit more form weekly therapy”.[12]
[10] Annexure “B”
[11] Annexure “H”
[12] Annexure “I”
The obligation on the Respondent is to pay the sum of $400.00 per year towards the child’s speech therapy. It is an ongoing commitment. The evidence is sufficient to establish that the Respondent has declined to continue to meet that commitment.
It is not a strong case. However:
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.[13]
[13] Lindon v Commonwealth (No 2) (1996) 136 ALR 251 at 255-6 (per Kirby J) , cited in Bigg v Suzi (1998) 22 Fam LR 700 at 5.9
The Respondent has not established that the Applicant has no reasonable prospect of successfully prosecuting the claim that the Respondent has declined to pay any further speech therapy for the child.
The Application for summary dismissal has not been made out.
It is incumbent on the Respondent to establish that the Court should not be satisfied that he contravened the orders or, if he did, that he had a reasonable excuse for doing so (Family Law Act 1975, s.70NEA).
I certify that the preceding fifty-nine (59) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Date: 24 September 2010
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