Holst and Blakeslee and Anor - [2018] FCCA 1797

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 22^nd 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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2018] FCCA 1797
Decision Date: 6 July 2018

CaseChat Overview and Summary

The Federal Circuit Court of Australia was asked to determine whether it had jurisdiction to hear a breach of contract claim brought by the Applicant Mother against School A, and whether it should grant injunctive relief. The dispute arose after School A terminated the enrollment contract for the parties' child, citing the father's alleged breach of the school's Parent Code of Conduct. The Mother sought to have the child re-enrolled, and the school had initially indicated it would reconsider if the Mother obtained sole parental responsibility and an injunction under the *Family Law Act 1975* (Cth), but later reneged on this representation.

The legal issues before the Court included whether it possessed accrued jurisdiction to hear the contractual claim alongside the family law matters, whether it was appropriate to exercise such jurisdiction, and whether the Court had jurisdiction under section 14 of the *Federal Circuit Court of Australia Act 1999* (Cth) to grant the requested remedies. The Mother also argued for the joinder of School A as a necessary party under rule 11.01 of the *Federal Circuit Court Rules 2001* (Cth) and contended that School A had breached the enrollment contract by failing to engage in a dispute resolution process before termination. Finally, the Court was asked to consider whether it should exercise its discretion to grant a mandatory interlocutory injunction requiring the reinstatement of the child's enrolment, applying the principles established in *Beecham Group Ltd v Bristol Laboratories Pty Ltd* (1968) 118 CLR 618.

Judge Neville dismissed the Applicant Mother's application. The Court found that the Mother's claim for injunctive relief against School A was a breach of contract claim, which was not a matter within the federal jurisdiction of the Court. While the Court acknowledged the principles of accrued jurisdiction and the potential for a single justiciable controversy, it determined that the contractual claim was not sufficiently connected to the family law matters to be considered part of the same controversy. Furthermore, the Court found that section 14 of the *Federal Circuit Court of Australia Act 1999* (Cth) did not confer jurisdiction to grant the specific equitable relief sought in this context. Consequently, the Court ordered that the Applicant's application be dismissed, with each party to bear their own costs, and all extant applications were dismissed, finalising the matter.

Orders

Orders of the court

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.

Background

Background to the litigation

The Applicant Mother’s submissions were filed alongside the Application in a Case on 22nd March 2018. They were as follows: A. Background1) 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 theE. 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; orb) 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; andd) 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 ConductSchool 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.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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