Mack & Spencer
[2022] FedCFamC2F 604
•10 May 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Mack & Spencer [2022] FedCFamC2F 604
File number(s): DGC 3415 of 2020 Judgment of: JUDGE BURCHARDT Date of judgment: 10 May 2022 Catchwords: FAMILY LAW – Ex tempore ruling on summary dismissal application made pursuant to s 45A Family Law Act. Legislation: Family Law Act 1975 (Cth)
Federal Court of Australia Act 1976 (Cth)
Cases cited: Jefferson Ford Pty Ltd v Ford Motor Company of Australia Limited & others [2008] FCAFC 60
Spencer & Commonwealth of Australia [2010] HCA 28
Division: Division 2 Family Law Number of paragraphs: 22 Date of hearing: 10 May 2022 Place: Melbourne Advocate for the Applicant: Mr Weerapah Solicitor for the Applicant: Carroll Goldsmith Lawyers Counsel for the Respondent: Mr Chislett Solicitor for the Respondent: Ressan Lawyers Advocate for the Independent Children's Lawyer: Ms Webb Solicitor for the Independent Children's Lawyer: Danielle Webb Lawyer ORDERS
DGC 3415 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR MACK
Applicant
AND: MS SPENCER
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE BURCHARDT
DATE OF ORDER:
10 MAY 2022
THE COURT ORDERS THAT:
1.The applicant's application pursuant to s 45A of the Family Law Act be dismissed.
2.The mother to provide to the Independents Children's Lawyer the full name and date of birth of her partner Mr B.
3.Orders are made in terms of the attached Minutes of proposed orders by the Independent Children's Lawyer and placed on the Court file.
4.The matter be adjourned to trial as fixed.
THE COURT NOTES THAT:
A.Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Attachment A and these particulars are included in these orders.
B.If in any proceedings there are allegations of family violence and the provisions of section 102NA of the Family Law Act 1975 apply (see attached Family Violence Information Sheet), any unrepresented party will not be permitted to personally cross-examine the other party/parties.
C.Affected unrepresented parties may apply to the Commonwealth Family Violence and Cross-Examination of Parties Scheme ("the Scheme") for representation but any such application must be made at least 12 weeks prior to the Final Hearing.
D.Further information about the legislation and the Scheme can be found at Part 4 of the attached Family Violence Information Sheet.
E.If section 102NA applies and a party becomes unrepresented after trial directions have been made, that party is required to promptly advise the Court.
ENGROSSED MINUTE:
1.The matter remain listed for a final hearing on 1 August 2022.
2.The applicant file any affidavit upon which he relies 28 days prior to the final hearing.
3.The respondent mother file any affidavits on which she relies 14 days prior to the final hearing.
4.The independent children’s lawyer file any affidavits on which she relies 7 days prior to the final hearing.
5.Paragraph 4 of the orders dated 23 July 2021 be varied so that the mother commences supervised time at C Contact Service upon the production of two clear drug screens.
6.Within 14 days the mother do all acts and things to obtain a referral and mental health plan if applicable to obtained counselling with Ms D to address the impact on her functioning as a result of her Cluster B personality vulnerabilities.
7.The mother confirm in writing with the lawyer for the father and the independent children’s lawyer when an appointment has been scheduled with Ms D and upon receiving this confirmation the independent children’s lawyer be at liberty to provide Ms D with a copy of the mother’s psychological assessment dated 9 May 2022.
8.The mother make appointment and attend for hair collection at an Australian Workplace Drug Testing Services (AWDTS) Clinic or nominee for hair drug collection is to be conducted by a qualified and certified collector. Chain-of Custody procedure is to be applied to the sample. Testing is to be conducted at an approved laboratory, accredited to conduct hair drug testing to the recognised International Standard ISO/IEC 17025:2005 by the relevant national accreditation body for that laboratory. Either head or body hair may be collected for testing. To give effect to this order:
(a)The mother is required to maintain her head hair at a length of not less than four (4) centimetres; neither head hair nor body hair is to be cut, bleached or dyed between the date of this order and the time of collection of hair;
(b)Within seventy-two (72) hours of the date of these orders, the mother is required to make an appointment with AWDTS on a date between 1 and 10 July 2022 by telephoning 1300 37 84 83 for the purpose of providing a hair sample for hair drug and testing purposes;
(c)Each party or their legal representatives is at liberty to provide AWDTS with a copy of these orders;
(d)The mother is to provide the collector with photographic identification to be recorded before each hair collection and authority, with this order also hereby authorising AWDTS or nominee to provide the results of each test to the father’s legal representative and the Children’s lawyer, upon receipt of such test results;
(e)The hair drug test screen for drugs of abuse including amphetamine-type substances and metabolites, cannabis and metabolites, cocaine and metabolites, opioids and metabolites and methamphetamine
(f)AWDTS is requested to utilise the testing services of an appropriate laboratory accredited to conduct hair drug testing to the recognised International Standard ISO/IEC 17025:2005 by the relevant National Accreditation body; AWDTS’ selection is to be based on the type of test required, the specific drug or drugs to be tested, the laboratory’s compliance level with international Society of Hair Testing (SoHT) guidelines, cost, and time required for results to be made available; and
(g) The cost of the hair drug test is to be met by the mother; and
9.Pursuant to Sections 65DA(2) and 62B of the Family Law Act 1975, the particulars of the obligations of these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in the fact sheet attached hereto and these particulars are included in these orders.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Mack & Spencer has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
Revised from TranscriptJUDGE BURCHARDT
The matter before the Court is the application by the father for the summary dismissal of the mother's case, pursuant to section 45A of the Act. Although the Court made orders in February listing the matter for trial and for a family report, those orders were plainly contingent upon the success or otherwise of this summary dismissal application. Section 45A(2) and (3) relevantly provide:
The court may make a decree for one party against another in relation to the whole or any part of a proceedings if:
(a)the first party is defending the proceedings or that part of the proceedings; and
(b)the court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceedings or that part of the proceedings.
Pursuant to subsection (3):
For the purposes of this section, a defence or proceedings or part of proceedings need not be:
(a)hopeless; or
(b)bound to fail;
to have no reasonable prospect of success.
Consideration of the copious authorities, in my view, would commence with Spencer v Commonwealth. In Spencer & Commonwealth of Australia [2010] HCA 28, French CJ and Gummow J, when considering section 31A of the Federal Court of Australia Act 1976 (Cth), which is in, relevantly, identical terms of section 45A of the Family Law Act 1975 (Cth) said at [24]:
The exercise of powers to summarily terminate proceedings must always be attended with caution.
Their Honours went on to say, at [25]:
Section 31A(2) requires a practical judgment by the Federal Court as to whether the applicant has more than a “fanciful” prospect of success.
The plurality of Hayne, Crennan, Kiefel and Bell JJ said at [51]-[52]:
First, the central idea about which the provisions pivot is “no reasonable prospect” (emphasis added). The choice of the word “reasonable” is important. If s 31A is to be seen as deriving from r 24.2 of the Civil Procedure Rules 1998 of England and Wales, its provisions underwent an important change in the course of their translation from that jurisdiction to this. The English rule speaks of “no real prospect”; section 31A speaks of “no reasonable prospect”. The two phrases convey very different meanings.
Second, effect must be given to the negative admonition in sub-s (3) that a defence, a proceeding, or a part of a proceeding may be found to have no reasonable prospect of successful prosecution even if it cannot be said that it is “hopeless” or “bound to fail”. It will be necessary to examine further the notion of “no reasonable prospect”. But before undertaking that task, it is important to begin by recognising that the combined effect of sub-ss (2) and (3) is that the inquiry required in this case is whether there is a “reasonable” prospect of prosecuting the proceeding, not an enquiry directed to whether a certain and concluded determination could be made that the proceeding would necessarily fail.
At [58]-[60], the plurality continued:
How then should the expression “no reasonable prospect” be understood? No paraphrase of the expression can be adopted as a sufficient explanation of its operation, let alone definition of its content. Nor can the expression usefully be understood by the creation of some antinomy intended to capture most or all of the cases in which it cannot be said that there is “no reasonable prospect”. The judicial creation of a lexicon of words or phrases intended to capture the operation of a particular statutory phrase like “no reasonable prospect” is to be avoided. Consideration of the difficulties that bedevilled the proviso to common form criminal appeal statutes, as a result of judicial glossing of the relevant statutory expression, provides the clearest example of the dangers that attend any such attempt.
In many cases where a plaintiff has no reasonable prospect of prosecuting a proceeding, the proceeding could be described (with or without the addition of intensifying epithets like “clearly”, “manifestly” or “obviously”) as “frivolous”, “untenable”, “groundless” or “faulty”. But none of those expressions (alone or in combination) should be understood as providing a sufficient chart of the metes and bounds of the power given by section 31A. Nor can the content of the word “reasonable”, in the phrase “no reasonable prospect”, be sufficiently, let alone completely, illuminated by drawing some contrast with what would be a “frivolous”, “untenable”, “groundless” or “faulty” claim.
Rather, full weight must be given to the expression as a whole.
That's the extract concluded. The only other reference to authority I would cite is in the judgment of Gordon J, as her Honour then was, in the Full Court of the Federal Court in Jefferson Ford Pty Ltd v Ford Motor Company of Australia Ltd & others [2008] FCAFC 60. In that case, I would refer by reference to the judgments, particularly of Rares and Gordon JJ, generally, without setting them out. The relevant part that seems to me of the greatest assistance is at [132], where her Honour said as follows.
I now come to a final, sixth principle, which is that in determining whether a real issue of fact exists such as to preclude summary judgment, the court must draw all reasonable inferences - but only reasonable inferences - in favour of the non-moving party. I emphasise “reasonable” because it is on this point that the lowering of the bar effected by s 31A becomes clear. By distinguishing between “hopeless” cases and those without reasonable prospects for success, the statute makes clear that the court need not (indeed, must not) refuse summary judgment on the basis of a factual dispute said to arise only from a plausible, as opposed to a reasonable, inference.
That is sufficient for the moment, I think.
Could I continue by acknowledging the extremely helpful and comprehensive review of the materials provided by Mr Weerapah. From those matters, I would take the following points, perhaps, as being of particular significance. First, the mother's history is tumultuous and concerning. Amongst the most salient points that emerge are, first of all, a propensity to enter into abusive relationships, most particularly, it would seem, with a Mr B. She has a tendency to take hard drugs. Once again, it would seem, apparently, particularly the case while in the relationship with Mr B. And she has certain personality defects described by Mr E, which tend to compel her to such difficulties.
Second - and there's no way around this - the mother seems to me to have lied or, at the very least, misled Mr E about Mr B. Paragraph 18 of Mr E's report, where Mr B is referred to as the mother's former partner - and the tenor of the report as a whole makes it clear that she was representing to Mr E that she was unattached and single during the interviews on the 21 April 2022. It is clear she is still in a relationship with Mr B. That is apparent from the most recent report from the Department of Families, Fairness and Housing, which I will come to in a minute, and her own mother's affidavit.
The next matter that emerges is that there must be a very real and ongoing concern as to whether the mother is indeed abstinent from drugs. Her most recent affidavit, filed on 6 May 2022, seems to me to go very close to making admissions to this effect.
Next, the mother and her own mother have not been wholly candid about their own interpersonal difficulties. So much is clear from the police records which Mr Weerapah took me to this morning. They, at least historically, have had arguments. And there have been issues about the extent of the maternal grandmother's drinking.
All these matters are important matters to which, of course, the Court has regard. However, there are a number of other matters that need to be borne in mind. First of all, orders were made by the Court in 2021 for supervised time, providing that the mother met a number of preconditions.
Secondly - and bearing in mind that I accept that the mother was also not candid during her interviews with the child impact report writer, nonetheless, paragraph 25, the following is recorded:
X stated that he would like to see his mother and his sister Y. He appeared excited at this prospect. X raised no concerns about his care with either parent. No other information was gathered as X became distracted.
Now, I note that that report went on to suggest that the mother's time not proceed until the issue of her drug use was sorted out. But the fact is, that's what X thought when the only independent report thus far available was provided.
The next matter to which I refer is the Department of Fairness, Families and Housing report to which I have already referred and which is dated 5 May 2022.
Relevantly, it says:
Child Protection received a report regarding Y on 21/01/2022. Following an investigation of the protective concerns, Child Protection identified that Y is safe to continue to reside with her mother and maternal grandmother, Ms F. The family advised that Ms Spencer spends a few nights a week in the home with Y and Ms F and the rest of the week with her partner. Child Protection developed a safety plan with the family that Y remains with Ms F whilst Ms Spencer spends the night with her current partner. Ms F was assessed as a safe person for Y and suitable to care for her when Ms Spencer is not present at the home.
Now, I would immediately accept that that report may be based on incomplete provision of information or inaccurate provision of information given the undoubted history of such activity by the mother in the past. But the fact is that the Department appears to have no concerns at Y being in her mother's care and that of the maternal grandmother.
The submission made forcibly and effectively by Mr Weerapah boils down to the proposition, as it was plainly put, that the mother is a hopeless drug addict and, as a result, represents an ever-present ongoing risk to X. But it needs to be noted that the mother's most recent affidavit denies a number of the father's assertions in terms that are not immediately obviously untenable. She does appear to be undertaking treatment. There is quite a deal of detail of paragraphs 43 to 48 of her most recent affidavit about the things she is doing to try and address her difficulties. And I would observe that I do not accept that those paragraphs of the affidavit suggest, at least to me, that she has reengaged with the sort of undesirables that she told Mr E she had disengaged from. They appear to me to be, simply, fellow patients. And as I understand these matters, one of the things that assists recovering - certainly, alcoholics, is exchange of information with people in the same situation. And I would infer that that is the same thing happening in this instance.
It is, of course, apparent that Mr B represents a big problem, not just because of his own criminal past and abusive behaviour and his drug use. What emerges from the Department's report is that the mother is spending, it would seem, most of her week with him. And this is exactly the sort of conduct that Mr E commented on in his report, because she is putting her relationship first and her time with Y second. However, having said all of that and paying proper regard to it, in my view, it cannot be said that the mother has no real prospects of success.
On any view, she will face considerable forensic problems. When she is cross-examined, she will struggle, in my view, to explain away some of the things upon which I have commented today. But if she is able to provide the clear drug screenings necessary to enable supervised time to take place and sort out a hair follicle test and sort out her evidence about Mr B between now and August, then her application may well have some prospects of success. I note that Mr E assessed the mother as being a moderate risk. But to be candid, it seems highly improbable to me that the mother was fully truthful to him. It remains to be seen whether, under cross-examination, Mr E's opinion may alter. But taking all these matters into consideration, in my view, it cannot be said that the mother has no real prospects of success. And I propose to dismiss the section 45A application.
The question then becomes, "Well, what should now occur?" This can be dealt with shortly. The Independent Children's Lawyer's proposals are obviously those that are in X's best interests. Time should progress to supervised time which would, of course, be safe, provided that the mother can meet the requirements contained within the orders themselves. This will have the obvious additional benefit that it will probably ground, assuming it occurs, a more insightful and complete family report.
I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Burchardt. Associate:
Dated: 10 May 2022
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