Holst and Blakeslee and Anor
[2018] FCCA 1797
•6 July 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| HOLST & BLAKESLEE & ANOR | [2018] FCCA 1797 |
| Catchwords: FAMILY LAW – Parenting Order sought to require a child to be re-enrolled in specialist school – futility of Application given that the child would not be able to attend that school after the end of this year and would have to move to a different school – public policy considerations regarding possibility or utility of forcing a school to accept a child – alleged “enforcement” of a “contract of enrolment” – discretionary considerations regarding the making of orders for mandatory injunction and or specific performance – Application dismissed. |
| Legislation: Family Law Act 1975 |
| Cases cited: Baker v Gough [1963] NSWR 1345 Co-operative Insurance Society Ltd v Argyll Stores (Holdings) Ltd [1998] AC 1 Humane Society International Inc v Kyodo Senpaku Kaisha (2004) 212 ALR 551 Lumley v Wagner (1852) 42 ER 687 In the Marriage of Ramsey (1982) 8 Fam LR 863 X v The Commonwealth (1999) 200 CLR 177 |
| Applicant: | MS HOLST |
| First Respondent: | MR BLAKESLEE |
| Second Respondent: | SCHOOL A |
| File Number: | CAC 1823 of 2013 |
| Judgment of: | Judge Neville |
| Hearing date: | 8 March 2018 |
| Date of Last Submission: | 28 June 2018 |
| Delivered at: | Canberra |
| Delivered on: | 6 July 2018 |
REPRESENTATION
| Solicitors for the Applicant: | Swiftly Legal, Melbourne | |
| Solicitors for the First Respondent: | Self Represented | |
| Solicitors for the Second Respondent: | Andrew Warren & Associates, Bega | |
ON A FINAL BASIS, THE COURT ORDERS THAT:
The Applicant’s Application in a Case, filed 22nd March 2018, be dismissed.
The parties pay their own costs.
All extant Applications are dismissed and the matter is now finalised and will be removed immediately from the docket.
IT IS NOTED that publication of this judgment under the pseudonym Holst & Blakeslee & Anor is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT CANBERRA |
CAC 1823 of 2013
| MS HOLST |
Applicant
And
| MR BLAKESLEE |
First Respondent
| SCHOOL A |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The current and only Application before the Court is rather novel. The Applicant Mother seeks to enforce what she declares is a contract with the [proposed] Second Respondent School and to require that school to continue her son’s enrolment. This is in circumstances, where, by and large due to the Father’s actions, the child no longer attends that school and attends a local, government-run school.
Initially, the School was very sympathetic towards, and supportive of, the Mother in almost all respects. This was in circumstances where the child’s parents have long been engaged in an energy-sapping contest (“arm-wrestle” is perhaps a better analogy) over quite a number of years over all manner of parenting issues, concerning their son, [X], who is now 12 years old.
Briefly stated, the Mother seeks that the child remain (or be) re-enrolled at the Second Respondent’s School. On the Mother’s evidence, the Father has consistently harassed the School and its teachers even to the extent, for which there is some evidence annexed to the Mother’s Affidavits, filed 23rd January and 22nd March 2018. Indeed, the situation seems to have reached the stage where the School was considering taking formal action to restrain the Father from attending the School. All such matters are explained and otherwise detailed in the abundant annexures to the Mother’s Affidavits previously noted.
The School’s position has now changed. The child’s enrolment at the School is no longer current and it resists the Mother’s Application. Further, the Father has enrolled the child in a local, government-run school. Moreover, it is undeniable that the child would have to change schools at the end of this year in any event when the child finishes primary school.
For the reasons that follow, the Application must be dismissed. In all of the circumstances, not least being the fact that the desperation of the Mother arose, as noted below, to a significant degree from (a) the Father’s incessant, enervating and almost mind-numbing inability to see the parenting wood for the trees that comprise it, and (b) the Second Respondent’s change of tack from supporting the Mother to then not doing so, I propose to make no Order as to costs other than that each party is to pay her, his or their own costs.
Applicant Mother’s Orders Sought
It will be immediately apparent that the Mother sought a range of declarations regarding the jurisdiction of this Court to make the substantive Orders sought. In my view, it is unnecessary to consider the interstices of the Court’s accrued jurisdiction, as outlined by the Mother. The matter is able to disposed of by other, more expeditious, means. However, for completeness I set out below, the Mother’s Orders Sought, followed by those from each of the Respondents – actual or proposed.
I should also note that the Father’s attempts to engage with the current Application shed very little light on the matter. I do not say this critically. As a self-represented litigant, and one with whom the Court has had regular engagement, it would be improper to expect him to comprehend many of the legal issues involved. For this reason, I do not propose to set out anything from his exhaustive material. It would serve no useful purpose to do so.
The Mother sought the following Orders in the Application in a Case, filed 22nd March 2018:
1. The Federal Circuit Court of Australia is sufficiently vested with accrued jurisdiction and it is appropriate for that jurisdiction to be exercised to deal with, hear and determine any claim by the Applicant as might deal with the termination of the enrolment contact into which the Applicant and Respondent had entered into with School A.
2. If the Federal Circuit Court of Australia is sufficiently vested with accrued jurisdiction and it is appropriate for that jurisdiction to be exercised so to deal with, hear and determine any claim by the Applicant as might deal with the termination of the enrolment contact into which the parties had entered into with School A, then:
a. Pursuant to r 11.01 of the Federal Circuit Court Rules, the School A be joined as a party in the proceedings;
b. Until further order, the School A reinstate the enrolment of the child, [X], prior to the commencement of term 2.
3. In the alternative to order 2, if the court has jurisdiction under s 14 of the Federal Circuit Court of Australia Act to hear and determine any claim by the Applicant as might deal with the termination of the enrolment contact into which the parties had entered into with School A, then:
a. Pursuant to r 11.01 of the Federal Circuit Court Rules, the School A be joined as a party in the proceedings;
b. Until further order, the School A reinstate the enrolment of the child, [X], prior to the commencement of term 2.
Applicant Mother’s Submissions
The Applicant Mother’s submissions were filed alongside the Application in a Case on 22nd March 2018. They were as follows:
A. Background
1) On 29 November 2017, the School A (School A) terminated the enrollment contract it had entered into with mother and father. The School A maintains that it had the right terminate the enrollment contract based on the father’s alleged breach of the school’s Parent Code of Contract (Code).
2) The mother initiated proceedings in the Federal Circuit Court on 23 January 2018 based on the School A’s representation that, if she could obtain an order for sole parental responsibility and an injunction under s 68B of the Family Law Act (FLA), the school would consider re- enrolling the child.
3) The school has since gone back on its representation, indicating that it would not re-enroll the child irrespective of the outcome of the family law proceedings. This was communicated to the mother via School A’s solicitor on 26 February 2018.
4) The mother is seeking injunctive relief against the School A. Her claim arises from a breach of contract, and the mother seeks to pursue it in the Federal Circuit Court of Australia.
5) The mother’s case is advanced under the following heads of argumment:
(i) The Federal Circuit Court of Australia is sufficiently vested with accrued jurisdiction.
(ii) It is appropriate for that jurisdiction to be exersised to determine the mother’s claim for injunctive relief arising from School A’s breach of contract.
(iii) The court should adopt the jurisdiction of the Supreme Court of New South Wales in determining the mother’s contractual claim.
(iv) In the alternative to (i)-(iii), the court has jurisdiction under s 14 of the Federal Circuit Court of Australia Act (FCCA) to determine the mother’s claim.
(v) Under r 11.01 of the Federal Circuit Court Rules (FCCR), joinder of the School A for School A (School A) is necessary to ensure that that the relevant controveries can be finally determined.
(vi) The School A breached the parties’ enrollment contract.
(vii) The court should exercise its discretion in favour granting a mandatory interlocutory injunction requiring the School A to reinstate the child’s enrolment.
B. The Federal Circuit Court of Australia is sufficiently vested with accrued jurisdiction.
1) The source of this jurisdicition is s 18 of the FCCA and s 76 Commonwealth of Australia Constitution Act.
(i) Section 18 of the FCCR provides:
“To the extent that the Constitution permits, jurisdiction is conferred on the Federal Circuit Court of Australia in respect of matters not otherwise within its jurisdiction that are associated with matters in which the jurisdiction of the Federal Circuit Court of Australia is invoked.”
(ii) Section 76 of the Commonwealth of Australia Constitution Act permits the conferral of jurisdiction in relation to matters not otherwise within the jurisdiction of High Court:
“The Parliament may make laws conferring original jurisdiction on the High Court in any matter:
(i) arising under this Constitution, or involving its interpretation
(ii) arising under any laws made by Parliament;
(iii) of Admiralty and maritime jurisdiction;
(iv) relating to the same subject-matter claimed under the laws of different States.”
(iii) In Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd (1981) 148 CLR, Barwick CJ recognised that the same jurisdiction was also vested in in other courts exercising federal jurisdiction:
“It is settled doctrine in Australia that when a court which can exercise federal jurisdiction has its jurisdiction attracted in relation to a matter, that jurisdiction extends to the resolution of the whole matter. This accrued federal jurisdiction is not limited to matters incidental to that aspect of the matter which has in the first place attracted federal jurisdiction. It extends, in my opinion, to the resolution of the whole matter between the parties. This accrued jurisdiction carries with it the authority to make such remedial orders as are necessary or convenient for or in consequence of that resolution. For this purpose, the court exercising federal jurisdiction may enforce rights which derive from a non-federal source. This exercise of this jurisdiction, which for want of a better term I shall call 'accrued' jurisdiction, is discretionary and not mandatory, though it will be obligatory to exercise the federal jurisdiction which has been at-tracted in relation to the matter.”
(iv) This approach was subsequently affirmed in Fencott & Muller (1983) 152 CLR 570 by Mason, Murphy, Brennan and Deane JJ:
“The unique and essential function of the judicial power is the quelling of such controversies by ascertainment of the facts, by application of the law and by exercise, where appropriate, of judicial discretion. In identifying a s. 76(ii) matter, it would be erroneous to exclude a substantial part of what is in truth a single justiciable controversy and thereby to preclude the exercise of judicial power to determine the whole of that controversy. What is and what is not part of the one controversy depends on what the parties have done, the relationships between or among them and the laws which attach rights or liabilities to their conduct and relationships. The scope of a controversy which constitutes a matter is not ascertained merely by reference to the proceedings which a party may institute, but may be illuminated by the conduct of those in controversy are defined and the claims for relief are set out. But in the end, it is a matter of impression and of practical judgment whether a non-federal claim and a federal claim joined in a proceeding are within the scope of one controversy and thus within the ambit of a matter.”
(v) And again in Stack v Coast Securities (1983) 154 CLR 261 by Mason, Brennan and Deane JJ:
“… the scope of federal jurisdiction in a proceeding are not restricted to the determination of the federal claim or cause of action in the proceeding, but extend beyond that to the litigious or justiciable controversy between parties of which the federal claim or cause of action forms part.”
C. It is appropriate for accrued jurisdiction to be exercised to determine any claim by the parties jointly or severally.
1) In Fencott, it was said that a matter falls within the scope of the court’s accrued jurisdiction if, along with the federal claim, it forms part of a single, justiciable controversy:
“But in the end, it is a matter of impression and of practical judgment whether a non-federal claim and a federal claim joined in a proceeding are within the scope of one controversy and thus within the ambit of a matter.'"
2) In Re Wakim [1999] HCA 27, Gummow and Hayne JJ specified indicia relevant to determining whether federal and non-federal claims form a single, justiciable controversy:
(i)“There is but a single matter if different claims arise out of "common transactions and facts" or "a common substratum of facts", notwithstanding that the facts upon which the claims depend "do not wholly coincide"”
(ii) “So, too, there is but one matter where different claims are so related that the determination of one is essential to the determination of the other[167], as, for example, in the case of the same damage and the determination of one will either render the other otiose or necessitate its determination.”
(iii)“Often, the conclusion that, if proceedings were tried in different courts, there could be conflicting findings made on one or more issues common to the two proceedings will indicate that there is a single matter.”
3) There is a common substratum of facts underpinning the mother’s federal and non-federal claims.
(i) Both claims arise from the termination of the child's enrolment based on the father's alleged violation of the Parent Code of Conduct.
4) The mother’s claims are so related that the determination of her claim in contract is essential to the determination of her claim under the FLA.
(i) The mother’s application to have the child re-enrolled under Pt VII of the FLA can be determined only if the following issue has also been determined. Namely, whether the School A should be compelled to reinstate the child’s enrolment by way of injunction.
(ii) And this issue, in turn, depends upon the determination of the mother’s contractual claim.
5) If mother’s claims were tried in different courts, there could be conflicting findings made on at least one issue common to both claims.
(i) The father's alleged conduct is an issue common to both claims.
(ii) Conflicting factual findings could be made in relation to this issue.
(A) Subject to the court’s discretion, evidence that would otherwise be inadmissible in civil proceedings is admissible in parenting proceedings under s 69ZT of the FLA.
(B) Such evidence may be relied upon in proving the father’s conduct in the federal claim, but not in the non-federal claim.
D. The court should adopt the jurisdiction of the Supreme Court of New South Wales.
1) The Local Court of New South Wales does not have jurisdiction to grant the mother injunctive relief.
(i) The mandatory injunction that the mother is seeking is an equitable remedy.
(ii) The Local Court of New South Wales does not have jurisdiction to grant equitable relief.
2) Nor does the District Court of New South Wales have jurisdiction to grant the injunctive relief sought by the mother.
(i) The specific grants of equitable jurisdiction relating to injunctive relief are enshrined in ss 140 and 46 of the District Court Act (DCA).
(ii) Neither of these provisions confer jurisdiction to grant the injunctive relief the mother is seeking.
(A) The jurisdiction to grant injunctive relief under s 140 of the DCA is limited to prohibitory injunctions.
(B) Section 46 of the DCA does not confer jurisdiction upon the District Court to grant the injunctive relief sought by the mother. The District Court has jurisdiction to grant injunctive relief where it is ancillary to a cause of action maintained in the court in proceedings within the jurisdiction conferred by s 44 of the DCA: Pelechowski v Registrar, The Court of Appeal (1999) 198 CLR 435 at 51. The injunctive relief sought by the wife is not an auxiliary to s 44 proceedings. If the injunction the wife is seeking is auxiliary, it is not auxiliary to her application for parenting orders under Pt VII of the FLA. The purpose of the injunction is to preserve the viability her application.
3) The Supreme Court of New South Wales, on the other hand, has the jurisdiction to grant the injunction sought by the mother under s 66(4) of the
E. In the alternative to (i)-(iii), the court has jurisdiction under s 14 of the Federal Circuit Court of Australia Act.
1) Section 14 of the FCCA provides:
“In every matter before the Federal Circuit Court of Australia, the Federal Circuit Court of Australia must grant, either:
a) absolutely; or
b) on such terms and conditions as the Federal Circuit Court of Australia thinks just;
all remedies to which any of the parties appears to be entitled in respect of a legal or equitable claim properly brought forward by him or her in the matter, so that, as far as possible:
c) all matters in controversy between the parties may be completely and finally determined; and
d) all multiplicity of proceedings concerning any of those matters may be avoided.”
2) Granting the mother injunctive relief is a remedy to which the mother is entitled. The argument in support of this claim is set out in paragraph H of this submission.
3) Granting such relief will completely and finally determine the controversy concerning the child's re-enrolment. This is supported by the claim set out in paragraph C.4.
4) Granting the mother's application for injunctive relief would avoid a multiplicity of proceedings.
(i) If the court refused to grant the injunctive relief sought by the mother, then she would have to seek such relief from the Supreme Court of New South Wales.
(ii) This would result in the multiplicity of proceedings contemplated by s 14 FCCA.
F. Under r 11.01 of the Federal Circuit Court Rules, joinder of the School A is necessary to ensure that that the relevant controversies can be finally determined.
1) Rule 11.01 of the FCCR provides:
“Necessary parties
(1) Subject to any order of the Court, a person whose participation is necessary for the Court to completely and finally determine all matters in dispute in a proceeding must be included as a party in the proceeding.
(2) The Court may require a person to be included as a party.
(3) A person required to be included as an applicant who does not consent to be included may be included as a respondent.
(4) The Court may decide a proceeding even if a person is incorrectly included or not included as a party.”
2) If the court is to determine the mother’s contract claim, then the school’s joinder is necessary for the Court to completely and finally determine all matters in dispute in the proceedings.
G. The School A breached the parties’ enrolment contract.
1) The enrolment application signed by the mother and father provides:
“I/We declare that we support School A’s ethos and abide by the school’s Policies, Procedures and Codes of Conduct.”
2) Relevantly, the Code provides:
“Consequences of Unacceptable Conduct
School A for School A expects its entire staff to deal professionally, competently and courteously with all parents and carers, including during those exceptional interactions where parents and guardians violate the staff’s inherent right to be treated with civility and respect. School A will however reserve the right to:
(1) Limit the physical access to the school or school activity.
(2) Limit the communication with staff.
(3) And if no resolution can be reached, terminate the enrolment contract for those parents and carers who are involved in repeated situations concerning verbal intimidation, escalating anger, abusive language or physically threatening behavior.”
3) The School A breached the enrolment contract when it failed to engage in the requisite dispute resolution process.
(i) Clause 3 of the Code contemplates a dispute resolution process as a condition precedent terminating the contract for breaching the Code.
(A) The follows from the phrase: “And if no resolution can be reached…”
(ii) The school did not attempt to engage the mother in a dispute resolution process before terminating the contract.
(A) The contract was terminated without notice to the mother.
(B) The School A school did not avail itself of the dispute resolution mechanisms prescribed by the Code. Clauses 1 and 2 of the Code prescribe mechanisms for resolving disputes arising from violations. To the mother’s knowledge, the School A did not attempt to limit the father’s access to the school. Nor did the School A attempt to limit the father’s communication with staff until after the child’s enrolment had been terminated.
4) The School A had unlawfully extinguished the mother’s right to have her child enrolled in the School A.
(i)If the school had the right to terminate the enrolment contract, rights and obligations of the parent found to have breached the Code.
(A) Clause 3 of the Code provides that the School A may: “…terminate the enrolment contract for those parents and carers who are involved [emphasis added] in repeated situations concerning verbal intimidation, escalating anger, abusive language or physically threatening behavior.”
(B) The phrase “for those parents and carers who are involved” limits the school’s right to terminate the contract to the extent that it affects the rights and obligations of the parent or carer found to have breached the code.
(ii) Terminating the contract affected the rights and obligations of the mother.
(A) It extinguished the mother’s right to have her child enrolled in the School A.
(iii) The mother was not found to have breached the Code.
H. The court should exercise its discretion in favour granting a mandatory interlocutory injunction requiring the School A to reinstate the child’s enrolment.
1) In Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618, Gummow and Hayne JJ held s court must undertake the following inquiries in determining whether injunctive relief should be granted:
(i) “The first is whether the plaintiff has made out a prima facie case, in the sense that if the evidence remains as it is there is a probability that at the trial of the action the plaintiff will be held entitled to relief ... the balance of convenience favours granting the injunction…”; and
(ii) “The second inquiry is ... whether the inconvenience or injury which the plaintiff would be likely to suffer if an injunction were refused outweighs or is outweighed by the injury which the defendant would suffer if an injunction were granted."
2) In assessing whether there is a prima facie case, the Gummow and Hayne JJ said that:
“The requisite strength of the probability of ultimate success depends upon the nature of the rights asserted and the practical consequences likely to flow from the interlocutory order sought.”
3) Considering the “practical consequences likely to flow from the interlocutory order sought” involves consideration of:
“the particular considerations which arise where the grant or refusal of an interlocutory injunction in effect would dispose of the action finally in favour of whichever party succeeded on that application.”
4) The other members of the majority, Gleeson CJ and Crennan J, identified the likelihood of injury for which damages is not an appropriate remedy as a further “organising principle”:
“the plaintiff is likely to suffer injury for which damages will not be an adequate remedy, and has shown that the balance of convenience favours the granting of an injunction.
5) Damages may not be an adequate remedy under the following circumstances.
(i) Determining the quantum of damages is difficult: Warner Bros Pictures Inc v Nelson [1936] 3 All ER 160 at 167, 168 per Branson J.
(ii) “Another factor is the creation of certain areas of damage which cannot be taken into monetary account in a common law action for breach of contract: loss of goodwill and trade reputation are examples”: Evans Marshall & Co Ltd v Bertola SA [1973] 1 All ER 992 at 1005.
6) The practical consequences of granting the injunction support the mother’s case for injunctive relief.
(i) Injunctive relief would enable the child to resume his education at the school he has been attending since playgroup.
(ii) There is no evidence that reinstating the child’s enrolment would impose any hardship, inconvenience or expense upon the School A.
(A) The only injury the School A has complained of is the father’s alleged conduct. It has not complained of either the mother or the child’s enrolment. Indeed, the School A was supportive of the mother’s efforts to have the child re-enrolled, subject to the mother obtaining sole parental responsibility and an injunction restraining the father from breaching the Code.
(B) The risk of father engaging in further transgressions of the Code could be managed by means of injunction the mother has sought under s 68B of the FLA.
7) The practical consequences of refusing injunctive relief support granting the injunction.
(i) If the injunction is not granted, then the mother’s right to have her child enrolled at School A will be extinguished before she has been given an opportunity to have it affirmed.
(A) By the time this matter is listed for a final hearing, the child will be entering high school.
(B) The School A offers education up to, and including, year 6.
(ii) If the mandatory injunction is granted, it is unlikely to be adverse to the School A’s interests. The argument in support of this claim is set out in paragraphs H.6.ii.A-B.
8) The injury that the applicant would suffer if the injunction were not granted outweighs the injury the school would suffer if it were granted.
(i) The risk of the school suffering any injury is minimal. The argument in support of the above claim is set out in paragraphs H.6.ii.A-B
(ii) The injury that the applicant would suffer is substantial.
(A) The argument in support of the above claim is set out in paragraph H.7.i.
9) There is a likelihood of injury for which damages are not an appropriate remedy.
(i) The mother’s loss cannot be taken into monetary account.
(A) The mother has not suffered any pecuniary loss.
(ii) Determining the quantum of damages would be extraordinarily difficult.
(A) It is by no means clear how the mother losing her right to have her child enrolled at School A can be quantified in terms of pecuniary damages.
[Proposed] Second Respondent School’s Submissions
The [proposed] Second Respondent School submitted written submissions via email on 17th April 2018. They were as follows:
Accrued jurisdiction
1) It is settled doctrine that a Federal Court does have an “accrued” jurisdiction over general law matters which arise in conjunction with matters arising under one of the Acts in respect of which a Federal Court has been invested with jurisdiction (Philip Morris Inc v Adam P Brown Male Fashions Proprietary Limited (1981) 148CLr57, Fencott v Muller (1983) 40 6ALR 41, Stack v Coast Securities (No 9) Proprietary Limited (1983) 40 9ALR193.
2) Hence, this court does have jurisdiction over general law matters which arise in conjunction with matters under the Family Law Act, subject to what follows.
3) What is clear from the authorities dealing with the “accrued” jurisdiction is that the federal and non-federal disputes must form part of a “single justiciable controversy” (Fencott v Muller).
4) Guidance on that issue is found from the High Court in Re Wakim [1999]HCA 27, where Gummow and Hayne JJ specified the following indicia relevant to determining whether the claims form a single, justiciable controversy:
(a) “there is but a single matter of different claims arise out of “common transactions and facts” or “a common substratum of facts”, notwithstanding that the facts upon which the claims depend “do not wholly coincide”
(b) “so, too, there is but one matter where different claims are so related that the determination of one is essential to the determination of the other… And the determination of one will either render the other otiose or necessitate its determination”
(c) “often, the conclusion that, if proceedings were tried in different courts, there could be conflicting findings made on one or more issues common to the two proceedings will indicate that there is a single matter”.
5) The main application of the accrued jurisdiction so far has been to resolve property issues relating to contested interest by third parties.
6) There is no reason readily apparent that would suggest the jurisdiction is limited to property matters as distinct from parenting matters. There appears to be no direct application of the jurisdiction to a parenting matter in reported decisions, however.
More recent decisions by the Full Court
7) In F Firm & Ruane and Ors [2014] FamCAFC 189 His Honour Strickland J said (161) :
“It is not the cause of action per se which is relevant to whether the jurisdiction is attractive, it is whether there is a single justiciable controversy involving a common substratum of facts. Importantly though, whether that is the case or not entails consideration of whether the claims are “completely disparate”, “completely separate and distinct”, or “distinct and unrelated”.
8) Thackray J. said (at 14)):
“… The focus should be on deciding whether there is one controversy. Any approach which shifts the focus to differences between the causes of action that arise within the context of that controversy is, in my respectful view, erroneous”
The matter before this Court
9) On 6 April 2018 the applicant’s solicitor served upon the second respondent School (for the first time) a copy of the Initiating Application and supporting affidavit filed by the applicant.
10) Clearly, the orders sought in the mother’s Initiating Application will attract the jurisdiction of the court under the Family Law Act.
11) Relevantly, on a final basis, the applicant mother seeks orders for:
(a) sole parental responsibility in respect of education issues affecting the child
(b) injunctive relief against the father restraining him from assaulting, harassing, or molesting the staff of the School and entering the School’s premises
12) Relevantly, on an interim basis, the mother seeks orders for:
(a) sole parental responsibility in respect of education issues affecting the child and
(b) an order that she do everything reasonably necessary to enrol the child at School A.
13) The applicant mother’s claims under the Family Law Act are referred to hereunder as “the parental responsibility claims”.
14) In the applicant mother’s Application in Case naming the School as a respondent, the applicant mother seeks orders “that the court hear and determine any claim by the applicant that might deal with the termination of the enrolment contact (sic) into which the applicant and respondent had entered into with School A”, and that the School reinstate the child’s enrolment.
15) In the affidavit filed by the mother affirmed 7 March 2018 she gives evidence of what, presumably, she relies upon to suggest that the School A wrongfully terminated the enrolment contract.
Applying the law to the facts of this case
16) For this Court to be said to have accrued jurisdiction to deal with the enrolment contract termination claim, it must be satisfied, (Re Wakim) that:
(a) the contract claim and the parental responsibility claims must arise out of a “common substratum of facts”;
(b) that the different claims are so related that the determination of one is essential to the determination of the other; and
(c) possibly that were the proceedings tried in different courts it could be conflicting findings might on one or more issues common to the two proceedings.
A common substratum of facts?
17) It is submitted that the only fact common in the two claims is the respondent father’s conduct towards the School.
18) That conduct is relevant to the parental responsibility claim, and also relevant to the contract claim.
19) The mere fact that that particular conduct is relevant to the two claims is far, however, from a “common substratum of facts”.
20) The mother’s evidence in support of her parenting application not only seeks to rely on the father’s behaviour towards the School, but on issues as diverse as the wishes of the child, the apparent findings of a psychologist, negative interactions between the mother and the father including incidents that occurred on a soccer field three years ago, the parties’ apparent incapacity to communicate with each other, and family violence.
21) It could not in any way be said that those “facts” have anything to do whatsoever with the father’s conduct towards the School that it is relevant to the contract claim.
22) Again, looking at it in reverse, the “facts” that the mother relies upon in relation to the contract claim include an interpretation of a document entitled “enrolment contract”, the existence and import of a document entitled “Code of Conduct”, representations made by various persons, whether those representations could be held to be binding upon the School, and other contractual issues. None of those facts, in turn, have anything to do whatsoever with the parental responsibility claim.
23) In summary, then, it is submitted that there is but one fact common to the two claims, that being the respondent father’s conduct towards the School.
24) That falls far short of providing a “common substratum of facts”.
Are the claims so related that the determination of one is essential to the determination of the other?
25) In considering this, it is important to be conscious of the fact that the parental responsibility claims brought by the mother are far broader than simply re-enrolling the child at School A for what is left of the 2018 calendar year.
26) It is common ground between the parties that the child cannot attend School A after this calendar year anyway, because he will be entering high School which is not offered by School A.
27) The mother’s parental responsibility claims extend to:
a) the balance of the child’s education after this year until he turns 18,
b) to the physical disciplining of the child,
c) to the manner in which either parent speaks about the other in the child’s presence,
d) to the discussion of family law proceedings with the child, and
e) to showing the child documents associated with the family law proceedings.
28) The determination of the contract claim has no bearing whatsoever on any of the matters referred to in the previous paragraph.
29) Indeed, the determination of the contract claim has no bearing on the determination of whether the mother should have sole parental responsibility in respect of education issues for the child for the balance of the 2018 year.
30) The only bearing that the determination of the contract claim has on any part of the mother’s claim is interim order 5 – “That forthwith the mother do everything reasonably necessary to enrolled the child at School A (“School A”)”. It could be argued that interim order five would be rendered otiose if the contract claim were determined otherwise than as sought by the mother.
31) Looking at the relevance of the two claims to each other in reverse, the determination of the parental responsibility claim is simply completely irrelevant to the contract claim.
If the proceedings were tried in different courts, could there be conflicting findings made on one or more issues common to the two proceedings?
32) It is noted that this Wakim indicia is not mandatory. The High Court referred to this indicia in terms of it “often” (but not always) being an indicia of a single controversy.
33) The only issue common to the two proceedings, as noted above, is the father’s behaviour towards the School, its servants and agents.
34) Otherwise, the issues in the two proceedings are completely different.
35) However, even the issue of the father’s behaviour is different for the determination of the family law claim and the contract claim.
36) Simply put, whether the father’s conduct fell inside or outside that specified by the Code of Conduct (see the mother’s submissions, item G) is not determinative of the parental responsibility claim.
37) The Federal Circuit Court’s enquiry is not constrained to a measuring of the father’s conduct firstly, only as it related to the School, its servants and agents , and secondly, against the requirements of the Code of Conduct.
38) Hence, were the disputes to be tried in separate courts, whilst the father’s conduct as it related to the School would be a common fact to be considered, in the Federal Circuit Court his behaviour at large, including the various allegations of family violence, et cetera, made in the mother’s affidavit would be considered, whereas a state court would be considering the father’s behaviour only as it related to the School, and how that was measured as against the constraints of the Code of Conduct.
39) These are two quite different enquiries.
40) Put in a different way, the Federal Circuit Court might not find the father’s conduct such that it supports the parental responsibility orders sought by the mother, or one of them, to be made. On the other hand, a state court could potentially find that the father’s conduct towards the School fell outside that required by the Code of Conduct.
41) Whilst they would be two different findings in relation to aspects of the father’s conduct, they remain quite consistent.
Submission as to accrued jurisdiction
42) This Court does not have accrued jurisdiction to deal with the breach of contract claim.
Section 14, Federal Circuit Court of Australia Act
43) The mother’s case is not assisted by reliance on this legislative provision which provides, in essence, a right of remedy in matters that are “before” the Court.
44) If the Court does not have jurisdiction to deal with a matter, the matter is not able to be “before” the Court.
Injunctive relief
45) In the event the Court finds that it has accrued jurisdiction to deal with this matter, it is submitted that it should not grant a mandatory injunction.
46) The basis for this submission is that the mother, who would be the plaintiff, has not made out of prima facie case in the sense of establishing on the evidence put forward by her that there is a probability that she will be entitled to succeed on the breach of contract claim.
47) The mother’s submissions outline the manner in which she would intend to frame the breach of contract claim.
48) The basis of the claim is as set out at item G of those submissions -in short, that the School breached its Code of Conduct.
49) It is submitted by the mother, at item G3, that the basis for the claim that the School breached the enrolment “contract” was that it “failed to engage in the requisite dispute resolution process”.
50) However, there is no “requisite dispute resolution process” prescribed by the Code of Conduct.
51) The mother’s submissions point out that the Code of Conduct says as follows:
“School A will however reserve the right to:
limit the physical access to the School or School activity
limit the communication with staff
and if no resolution can be reached, terminate the enrolment contract for those parents and carers who are involved in repeated situations concerning verbal intimidation, escalating behaviour, abusive language, or physically threatening behaviour”
52) Nowhere in any of that is a dispute resolution process required as a “condition precedent to terminating the contract” (as submitted by the mother at G (3) (i)).
53) At item G (3) (ii)(B) of the mother’s submissions, it is suggested that because the School did not attempt to limit the father’s access to the School or his communication with the staff, therefore the School did not avail itself of a condition precedent dispute resolution process.
54) Again, however, nothing in the Code of Conduct says that the School must first limit access, or limit communication prior to terminating enrolment. It simply says it “reserves the right” to take certain of those steps.
55) There is no evidence put forward by the mother that would satisfy the court in any event that she has a prima facie case relying on the document that she refers to as the “enrolment contract” which is annexure H – 1 to her affidavit.
- Firstly, the document is completely illegible.
- Secondly, the document does not appear to be signed by the School or its officers.
- Thirdly, the document is not signed by the mother.
- Fourthly, the document is not signed by the father.
- Fifthly, paragraph 2 of the mother’s affidavit affirmed 7 March 2018 inadmissibly seeks to give evidence of what the document (were a legible copy provided) apparently says.
56) In any event, most importantly, the Code of Conduct expresses under the subheading “Aim” (that appears at page 12 of the mother’s affidavit) the following:
“Specifically, this Code of Conduct is intended to:
i) provide a set of general principles to guide parents…”
..........
This code is not intended to comprehensively address every situation but is a general guide only”
57) To the extent the mother seeks to rely on the Code of Conduct as contractually binding on the School, it is clear by what is identified in the previous paragraph that the Code was never intended to be contractual in nature. It was only ever intended to “provide a set of general principles”.
58) All of the above being the case, the mother’s attempt to rely on the Code of Conduct as contractually binding the School is ill-conceived and must fail.
59) That being the case, she cannot establish a prima facie case, and no injunction should flow.
Consideration & Disposition
For the following reasons, and more importantly, the following legal principles, the Application must be dismissed.
First, it has long been the practice of Courts not to make orders where to do so would be utterly futile. Allsop J (as his Honour once, and then, was) discussed this judicial principle or practice in Humane Society International Inc v Kyodo Senpaku Kaisha.[1] At [70], his Honour said: “The Court will not make futile orders. Whether or not they are futile may depend upon many matters, including but far from limited to the attitude of persons who are not present before the Court.”
[1] Humane Society International Inc v Kyodo Senpaku Kaisha (2005) 212 ALR 551. See also the consideration of factors regarding the exercise of a Court’s discretion noted by Gummow and Hayne JJ in X v The Commonwealth (1999) 200 CLR 177 at [112].
On the unchallenged facts of the matter here: (a) the child has only the rest of the year to complete primary school, (b) the [proposed] Second Respondent does not provide secondary education, (c) the child is currently enrolled and attending a local school which, I understand, will allow him to continue into his secondary education, and (d) the [proposed] Second Respondent, whatever its original position in supporting the Mother, now does not do so. In these circumstances, in my view, it would be futile to make the Orders sought by the Mother. This is not to ignore the Mother’s complaint about the Father unilaterally withdrawing the child from the Second Respondent’s School. But the apposite relief is formally as against the Father; in my view, the Applicant Mother’s relief does not arise as against the School.
Secondly, the Applicant seeks a mandatory injunction as against the Second Respondent to require it to re-enrol the child. Formally, such an injunction is recognised as a “restorative” injunction. Even more specifically, a mandatory injunction as sought amounts to an Order for specific performance. Discretionary considerations apply in relation to the granting of such relief. Those considerations must necessarily include the matters set out in the immediately preceding paragraph. As well, there is significant authority that holds that such relief will not be granted where, for example, the parties (or the circumstances) have effectively created or contributed to an estoppel or that it would otherwise be inequitable for such an Order to be made.[2] In my view this is the case here simply by virtue of the effluxion of time and the circumstances (not of the Mother’s making) of the child being enrolled and now attending another school.
[2] See In the Marriage of Ramsey (1982) 8 Fam LR 863 and the cases there cited.
Thirdly, in no submission was there any discussion of cases that deal with the enforcement of contracts of, or for, personal service.[3] It could be argued that the “enforcement” of a contract with the school would be tantamount to such a contract, in which case the same (or other) discretionary considerations apply as to whether or not to grant the relief here sought. However, because no such matters were raised in submissions, and because in the result it is unnecessary for the Court to pursue or to consider such authority, it is otiose to press on with such matters.
[3] See, for example, prominent cases such as Lumley v Wagner (1852) 42 ER 587, and more recently, Baker v Gough [1963] NSWR 1345.
Fourthly, there is long and strong authority that there will be no Order by a Court to force parties to continue to work together who are otherwise in a hostile relationship.[4] By reference to this authority, analogously, an injunction would be inappropriate here because of the situation that has developed here between the Mother and the [proposed] Second Respondent School.
[4] See Co-Operative Insurance Society Ltd v Argyll Stores (Holdings) Ltd [1998] AC 1.
In all of the circumstances, and because of the conclusion the Court has reached regarding the substantive Application, it is unnecessary to comment on the detailed submissions regarding the Court’s accrued jurisdiction, and equally so regarding that part of the Application to join the [proposed] Second Respondent School.
For the reasons given, and most particularly in the exercise of the Court’s discretion in the light of the factors set out in these reasons, the Application in a Case, filed 22nd March 2018, must be dismissed. Each of the parties is to pay their own costs.
I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Judge Neville
Date: 6 July 2018
0
10
2