Meadows & Meadows (No. 5)

[2020] FamCA 946

FAMILY COURT OF AUSTRALIA

Meadows & Meadows (No. 5) [2020] FamCA 946

File number(s):

PAC 3509 of 2013

Judgment of:

REES J

Date of judgment:

20 November 2020

Catchwords:

FAMILY LAW –APPLICATIONS IN A CASE – Where the applicant and respondent have filed several Applications in a Case – Where there is no substantive application before the Court – Where the applications serve no substantive purpose – Applications dismissed – Where the applicant seeks personal protective orders under section 68B of the Family Law Act 1975 (Cth) – Where this application may be determined without a substantive application.

Legislation:

Family Law Act 1975 (Cth) s 68B

Family Law Rules 2004 rr 1.04, 1.12, 5.01

Number of paragraphs:

20

Date of last submission/s:

10 November 2020

In Chambers:

20 November 2020

Place:

Sydney

The Applicant:

In Person

The Respondent:

In Person

ORDERS

PAC 3509 of 2013

BETWEEN:

MS MEADOWS

Applicant

AND:

MR MEADOWS

Respondent

ORDER MADE BY:	REES J
DATE OF ORDER:	20 NOVEMBER 2020

THE COURT ORDERS:

1.That the Applications in Case filed by the wife on 20 September 2020; 30 September 2020 and 1 October 2020 are dismissed.

2.That the Application in a Case filed by the husband on 8 October 2020 is dismissed.

3.That in relation to the application filed by the wife on 22 July 2020, seeking orders pursuant to section 68B of the Family Law Act 1975 (Cth):

(a)The wife, not later than 4 pm on 18 January 2021, file and serve all affidavit material upon which she seeks to rely, noting that the wife will be permitted to rely on one affidavit only by herself and one affidavit only of each other witness.

(b)That not later than 4 pm on 18 March 2021, the husband file and serve a response and all affidavit material upon which he seeks to rely, noting that the husband will be permitted to rely on one affidavit only by himself and one affidavit only of each other witness.

(c)That no other affidavits are to be filed without the leave of the Court first obtained.

(d)That the matter be listed for call-over and the allocation of a hearing date on 16 April 2021.

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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).

IT IS NOTED that publication of this judgment by this Court under the pseudonym  Meadows & Meadows has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

Rees J

1. Parenting and property proceedings between Ms Meadows (“the wife”) and Mr Meadows (“the husband”) were finally determined on 26 May 2020 when the Full Court dismissed the wife’s appeal against orders made by a judge of the Family Court on 30 July 2019.

2. Since 26 May 2020, when the wife’s appeal was dismissed, neither she nor husband has filed any substantive application, that is, an Application Initiating Proceedings or a Response to such an Application. There is thus no case currently before the Court.

3. However, since July 2020, the wife has filed seven Applications in a Case and the husband has filed three Applications in a Case. Of these applications, four filed by the wife and one filed by the husband remain outstanding.

4. In accordance with the registrar’s invitation both the wife and the husband, who are each self- represented, have filed written submissions. In short, the wife wishes to proceed with all four applications filed by her and to have the husband’s application dismissed. The husband wishes to proceed with the application filed by him and to have the wife’s applications dismissed.

5. On 14 October 2020, a judge of the Family Court made orders pursuant to s 102QD of the Family Law Act 1975 (Cth) (“the Act”) which restrained the wife from initiating proceedings without leave of the Court first being given. The order further specified applications then filed and not then determined thus:

   a.        For the mother:

   i.The mother’s application for personal protection orders;

   ii.Whether leave is granted to issue a subpoena for the personal attendance of B to give evidence;

   iii.Whether an Independent Children’s Lawyer be appointed; and

   iv.The father’s giving of gifts to B that the mother has sent.

   b.        For the father:

   i.The father’s application that he not be required to disclose his current address to the mother.

6. On 3 November 2020, a registrar wrote to both the wife and the husband in the following terms:

   Dear Parties,

   RE: MEADOWS MS & MR – PAC3509/2013

   I refer to the above matter.

   I note that the following Applications remain active:

   1.        Ms Meadows:

   a.        Application in a Case filed on 22 July 2020;

   b.        Application in a Case filed on 20 September 2020;

   c.        Application in a Case filed on 30 September 2020; and

   d.        Application in a Case filed on 1 October 2020.

   2.        Mr Meadows

   a.        Application in a Case filed on 8 October 2020.

   It is further noted that there is no active Initiating Application in which final orders are sought (in accordance with Rule 5.01(1) of the Family Law Rules 2004), as those proceedings having been finalised by orders made by the Honourable Justice Baumann on 30 July 2019.

   In these circumstances, each party is required to file and serve written submissions not later than 4.00 pm on 10 November 2020 as to why all of the above-listed Applications in a Case should not be struck out. Written submissions must be E-filed.

   These submissions will be dealt in chambers in the absence of the parties after 10 November 2020 by a Judge of the Family Court of Australia, other than Justice Henderson.

   (Emphasis in the original)

7. The application for a personal protection order is found in the Application in a Case filed 22 July 2020 and sealed 12 August 2020. That application relies on s 68B of the Act.

8. With the exception of the wife’s application for permanent protection orders, which will be dealt with separately, all of the pending applications are interlocutory and do not determine substantive rights. In simple terms, the applications deal with disputes about what is to happen before the final issues are determined and not the final issue itself.

9. The Family Law Rules 2004 (“the Rules”) provide, relevantly:

   5.01 Restrictions in relation to applications

   (1) A party may apply for an interim, procedural, ancillary or other incidental order in relation to a cause of action only if:

   (a)the party has made an application for final orders in that cause of action; and

   (b) final orders have not been made on that application.

   Note: A reference to application includes a reference to cross‑application (see the dictionary).

   (2) A party may apply for an interim, procedural, ancillary or other incidental order only if the order sought relates to a current case.

   (3) Subrule (2) does not apply if the party is seeking:

   (a) permission to start a case or extend a time limit to start a case;

   (b)to start a case for a child or a person with a disability under rule 6.10; or

   (c) an order for costs.

   (4) This rule does not apply to restrict the filing of an Application in a Case by:

   (a) an independent children’s lawyer;

   (b) the Director of Public Prosecutions, when making an application under section 79C, 79D, 90N, 90P, 90VB or 90VC of the Act, to stay or lift a stay of a property settlement or spousal or de facto maintenance case;

   (c) a bankruptcy trustee; or

   (d) a trustee of a personal insolvency agreement.

   (4A) This rule does not apply to restrict the filing of an application for an order in relation to an arbitration by a party to the arbitration or an arbitrator conducting the arbitration.

   (5)If a party applies for an interim, procedural, ancillary or other order at the start of a case, the application must be in an Initiating Application (Family Law).

   (6) If a party applies for an interim, procedural, ancillary or other order after a case has commenced, the application must be in an Application in a Case.

10. Thus it is clear that no party can file an Application in a Case unless there is a current, substantive, application before the Court.

11. The wife, in her written submissions, relies on a number of provisions in the Rules, some of which have no obvious application to the present matter. Inter alia, she relies on Rule 1.12 which provides:

    1.12 Court may dispense with Rules

    (1) These Rules apply unless the court, on application or its own initiative, orders otherwise.

    (2) The court may dispense with compliance with any of these Rules at any time, before or after the occasion for compliance arises.

    (3) In considering whether to make an order under this rule, the court may consider:

    (a) the main purpose of these Rules (see rule 1.04);

    (b) the administration of justice;

    (c) whether the application has been promptly made;

    (d) whether non‑compliance was intentional; and

    (e) the effect that granting relief would have on each party and parties to other cases in the court.

12. The “main purpose of the rules” is defined as:

    1.04 Main purpose of Rules

    The main purpose of these Rules is to ensure that each case is resolved in a just and timely manner at a cost to the parties and the court that is reasonable in the circumstances of the case.

13. Nothing in that definition suggests that parties should be able to engage in litigation in circumstances where there is no current substantive case before the Court.

14. In the present circumstances, I propose to dismiss all outstanding applications, noting that:

    ·The applications offend the main purpose of the Rules.

    ·The administration of justice is not served by the pursuit of applications which have no substantive purpose.

    WIFE’S APPLICATION FOR PERSONAL PROTECTION ORDER

15. The application is expressed to be made pursuant to s68B(1)(a); s 68B(1)(b)(i); s 68B(1)(c)(ii) and s 68B(1)(d)(ii) of the Act.

16. While, strictly, the wife should have filed an Application Initiating Proceedings, Rule 1.04 requires that the application proceed.

17. Section 68B provides:

    68B Injunctions

    (1)If proceedings are instituted in a court having jurisdiction under this Part for an injunction in relation to a child, the court may make such order or grant such injunction as it considers appropriate for the welfare of the child, including:

    (a)         an injunction for the personal protection of the child; or

    (b)        an injunction for the personal protection of:

    (i)a parent of the child; or

    (ii)a person with whom the child is to live under a parenting order; or

    (iii)a person with whom the child is to spend time under a parenting order; or

    (iv)a person with whom the child is to communicate under a parenting order; or

    (v)a person who has parental responsibility for the child; or

    (c)         an injunction restraining a person from entering or remaining in:

    (i)a place of residence, employment or education of the child; or

    (ii)a specified area that contains a place of a kind referred to in subparagraph (i); or

    (d)        an injunction restraining a person from entering or remaining in:

    (i)a place of residence, employment or education of a person referred to in paragraph (b); or

    (ii)a specified area that contains a place of a kind referred to in subparagraph (i).

    (2)A court exercising jurisdiction under this Act (other than in proceedings to which subsection (1) applies) may grant an injunction in relation to a child, by interlocutory order or otherwise, in any case in which it appears to the court to be just or convenient to do so.

    (3)An injunction under this section may be granted unconditionally or on such terms and conditions as the court considers appropriate.

18. Thus it is clear that the Court has power to deal with an application for an order pursuant to s 68B as a “stand alone” application where there is no other substantive application before the Court.

19. The wife seeks orders in the following terms:

    1.(Order 1) That pursuant to Section 68B 1(a) & Section 68B 1(b)(i) & Section 68B 1(c)(ii) & Section 68B 1(d)(ii) of the Family Law Act 1975 Part VII an order be made for the personal protection of Ms Meadows ("the applicant mother") (d.o.b …1981) and B ("the child") (d.o.b …2011) restricting and restraining the respondent father Mr Meadows (d.o.b …1979) ("the father") from menacing, harassing or otherwise interfering in the operation and execution of Order 8 of the orders dated 30 July 2019 of His Honour Justice Baumann for the telephone communication time between the applicant mother and child; including restricting and restraining the father from the following:

    2.(a) monitoring, listening, taking notes or otherwise entering during the telephone communication time and/or remaining in the same room as the child during the telephone communication time.

    3.        (b) attempting to restrict or restrain the child's telephone communication time
    
    4.        (c) harassing, menacing, hanging up the child's call or advising in any way for     the child to end her telephone communication time,

    5.(d) enrolling or allowing the child to partake in any extra-curricular activity or outside of school hours activity during the child's communication to/with the applicant mother.

    2.(Order 2) That should the respondent father Mr Meadows fail or act in any manner in which effects the operation of Order 1 above that the matter be able to be relisted within 7 days for hearing and/or amendment of the orders.

    (As per the original)

20. I will make directions for the preparation of that application for trial and for it to be heard.

I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Rees.

Associate:

Dated:       20 November 2020