Omar and Sheridan
[2017] FCCA 1551
•6 July 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| OMAR & SHERIDAN | [2017] FCCA 1551 |
| Catchwords: FAMILY LAW – Application for de facto maintenance – parties are the parents a child aged almost three years – parties were involved in a short relationship involving cohabitation of less than six months – threshold jurisdictional issue – is it possible to characterise nature of relationship between the parties at this stage – matters to be considered. |
| Legislation: Family Law Act 1975, ss.4AA, 39B, 44(5), 44(6), 90RD, 90SB, 90SD, 90SE, 90SG, 90SM, 90SM Federal Circuit Court of Australia Act 1999, s.17A |
| Cases cited: Taisha v Peng (2013) 48 FamLR 150 Moby & Schulter (2010) FLC 93-447 Jonah v White (2012) 45 Fam LR 460 Taisha v Peng (2013) 48 FamLR 150 Jonah v White (2012) 45 Fam LR 460 Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135 Welsh v Diglin Pty Ltd [2005] FCAFC 149 Hall v Hall [2016] HCA 23 Lynam v Director-General of Social Security (1983) 52 ALR 128 Norton & Locke (2013) FLC 93-567 Moby & Schulter [2009] FamCA 1285 McKellar v Container Terminal Manager Services Limited (1999) 165 ALR 400 Dey v Victorian Railway Commissioners (1949) 78 CLR 62 Webster v Lampard (1993) 177 CLR 598 |
| Applicant: | MR OMAR |
| Respondent: | MS SHERIDAN |
| File Number: | ADC 2401 of 2015 |
| Judgment of: | Judge Brown |
| Hearing date: | 9 May 2017 |
| Date of Last Submission: | 9 May 2017 |
| Delivered at: | Adelaide |
| Delivered on: | 6 July 2017 |
REPRESENTATION
| Counsel for the Applicant: | No appearance |
| Solicitors for the Applicant: | Not applicable |
| Counsel for the Respondent: | Mr Holland |
| Solicitors for the Respondent: | Angela Ferdinandy |
ORDERS
The interim application in respect of urgent de facto maintenance is dismissed.
The matter is fixed for final hearing before Judge Brown on 15 & 16 November 2018 at 10:00am NOTING 2 days allowed.
The matter be listed for further directions on 7 November 2017 at 9:30am.
The applicant is given leave to appear by telephone on the occasion of the directions hearing.
The father is directed to file an amended application in reply to the response, filed by the respondent in which she seeks a declaration that a de facto relationship existed between the parties pursuant to the provisions of section 90RD of the Family Law Act 1975 and related property orders pursuant to section 90SM, together with an affidavit in support within 42 days of today’s date.
IT IS NOTED that publication of this judgment under the pseudonym Omar & Sheridan is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT ADELAIDE |
ADC 2401 of 2015
| MR OMAR |
Applicant
And
| MS SHERIDAN |
Respondent
REASONS FOR JUDGMENT
Introduction
Mr Omar and Ms Sheridan were involved in a brief relationship in 2013. The relationship produced a child, X born (omitted) 2013. The parties have never been married.
This case is concerned with the question of whether it is legally appropriate that any order be made, pursuant to the provisions contained in Division 2 of Part VIIIAB of the Family Law Act 1975, that Mr Omar provide maintenance to Ms Sheridan, and if so, what should be the quantum of that maintenance and its duration.
These questions turn on whether it is possible, at this stage, to characterise the nature of the relationship between the parties, particularly whether it was a de facto relationship and what are the implications of this for the exercise of the court’s discretion to make a de facto maintenance order. The latter is further complicated by the fact that Mr Omar has failed to take an active role in the proceedings to date.
Background
Mr Omar commenced these proceedings on 30 June 2015. He sought both interim and final parenting orders in respect of X. He did not seek any financial orders or orders in the nature of a declaration that a de facto relationship had existed between him and Ms Sheridan. His supporting affidavit stressed his limited involvement with X up to that stage and his desire to form a relationship with the child.
Ms Sheridan responded to this application on 20 November 2015. In response to Mr Omar’s application for parenting orders relating to X, she sought that she should have sole parental responsibility for the child and that his name be changed to X – the effect of which would be to remove any paternal reference in the child’s surname. On both a final and an interim basis, Ms Sheridan proposed that Mr Omar should spend only professionally supervised time with X at a Children’s Contact Centre.
Significantly, in the context of the current proceedings on a final basis, Ms Sheridan sought the following orders:
·A declaration be made that the parties lived in a de facto relationship between about March 2013 and November 2013, within the meaning of section 90RD and section 90SB of the Family Law Act 1975 and that there is a child of this relationship;
·An order for settlement of property and/or spousal maintenance, as the court considered just and equitable.
On an interim basis, Ms Sheridan sought an order that Mr Omar pay her the sum of $300.00 per week, by way of urgent spousal maintenance. Notwithstanding the characterisation of her application as urgent, it is clearly the case that this aspect of the application has not been mounted with particular expedition.
It is unclear from the material currently filed precisely when the parties met and in what circumstances. However, both depose that they began to live together at some time in (omitted) 2013, at Ms Sheridan’s home in the (omitted), South Australia. It is Mr Omar’s evidence that he is usually a resident of Queensland where he is usually employed as a (occupation omitted), on his own account.
Mr Omar has deposed that he and Ms Sheridan lived in the same household for about five weeks from March 2013 onwards, at which stage he returned to Queensland where he has a child from an earlier relationship. Thereafter, he asserts that the parties lived in the same household in the (omitted), between July 2013 and November of 2013.
Ms Sheridan has deposed that the parties began a relationship in (omitted) 2012, commenced to live together in (omitted) 2013 and finally separated in November of 2013. She categorises the relationship between the parties as being a de facto one, albeit one conducted over long distance. To utilise her terminology, Ms Sheridan concedes that the parties “residential status was for a short time”.[1]
[1] See Ms Sheridan’s affidavit filed 8 May 2017 at paragraph 37
During the period of the parties’ relationship, Ms Sheridan asserts that she provided sums of money to Mr Omar between March 2013 and April 2013, which provided for his financial support. In addition, she asserts that Mr Omar did not contribute towards the cost of household utilities in the early stage of the parties’ cohabitation, but did so between July and early November 2013.
It seems to be the case from both parties’ perspectives, that the relationship between them was short in duration and generally unsatisfactory. Ms Sheridan deposes that prior to the date of final separation in November of 2013, she and Mr Omar had multiple separations. From Mr Omar’s perspective, between July and November of 2013, he had only very limited interaction with X and after November of 2013, was able to see the child on only a handful of occasions.
It is his case that, more often than not, Ms Sheridan declined his requests to spend time with X, when he visited South Australia from Queensland. He characterises Ms Sheridan as being irrational and emotionally abusive towards him in respect of his desire to have some form of relationship with X.
From Ms Sheridan’s point of view, Mr Omar was a neglectful and incompetent parent who displayed a number of anti-social personality traits during the parties’ relationship, including marijuana and alcohol abuse. It is also her position that he subjected her to financial exploitation and is currently in a far superior financial position to her.
The procedural history of the matter
Ms Sheridan was served with Mr Omar’s application on 8 July 2015. The application was given its first return date on 28 September 2015. On this occasion, Ms Sheridan was unrepresented and had not filed any answering material. As previously indicated, this application dealt solely with issues to do with the future parenting of X.
As a consequence of the lack of a material in response, the proceedings were adjourned to 8 December 2015 and the parties were directed to attend a child dispute conference, pursuant to the provisions of section 11F of the Act, on 1 December 2015. Ms Sheridan was directed to file her answering material within 28 days.
On 8 December 2015, the parties entered into a consent order that saw X living with Ms Sheridan and the parties themselves being assessed as to their suitability to take part in the supervised contact program offered by the (omitted) Children's Contact Centre, with a view to Mr Omar spending supervised time with X. In addition, Mr Omar was directed to undertake three supervised random drug screen tests, during the period of the adjournment, which was to 26 May 2016.
It is unclear whether either of the parties completed the assessment envisaged by the orders of 8 December 2015. What is clear is that no time occurred between X and Mr Omar. On 24 May 2016, he filed a notice of discontinuance in which he indicated that he wanted to discontinue all of his applications for parenting orders in respect of X.
The proceedings were administratively adjourned until 20 July 2016, on the joint request of the parties’ legal representatives, until 20 July 2015. On this occasion, neither Mr Omar nor his solicitor appeared and the proceedings were adjourned until 19 October 2016. A few days prior to this occasion, Mr Omar’s solicitor withdrew.
Again, Mr Omar failed to appear on 19 October 2016. In these circumstances, he was directed to file and serve a reply, addressing the financial issues raised by Ms Sheridan within 21 days. The proceedings were adjourned until 16 November 2016.
Mr Omar did attend court on 16 November 2016 via a telephone link from Queensland. He indicated his unwillingness to pay maintenance to Ms Sheridan and expressed his dissatisfaction that he had been unable to achieve any interaction with X since he began the now discontinued aspect of the proceedings in June of 2015.
In these circumstances, Mr Omar was once again directed to file and serve a reply, setting out his formal response in respect of the financial issues raised by Ms Sheridan, together with an affidavit in support and a statement of his financial circumstances. He was given thirty-five days to prepare and file these documents.
Thereafter, the proceedings were adjourned until 8 February 2017 and it was noted on the relevant order that if Mr Omar failed to comply with the order for filing answering material, Ms Sheridan’s application would be set down for an undefended hearing.
Mr Omar did not comply with this order. He did however file a statement of his financial circumstances, on 7 February 2017. This document was apparently prepared by Mr Omar himself and has the appearance of having been done hurriedly. It is far from complete. In particular, the portion of the pro forma dealing with orders for maintenance [Part N] has been left blank.
On 8 February 2017, the following order was made:
“Further consideration of the matter is adjourned to 11:00am on 9 May 2017 for a short hearing on the papers of the mother’s application for spousal maintenance NOTING the father is at liberty to attend by telephone link.”
On 9 May 2017, the court attempted to contact Mr Omar via the telephone number, which he had previously provided. Mr Omar could not be contacted. In these circumstances, the hearing envisaged in the order of 8 February 2017 took place. This involved submissions from Ms Sheridan’s counsel, Mr Holland and the tender by him of an affidavit recently deposed by Ms Sheridan, which updated her financial circumstances.
Ms Sheridan’s current position
It is Ms Sheridan’s position that Mr Omar has chosen to have no contact with X. She is currently in receipt of parenting payments from the Department of Social Security. In the past, she has derived income as a (occupation omitted) in the (omitted) industry. However, she is not currently in paid employment. Ms Sheridan deposes that her Centrelink payment is $375.00 per week.
There is a child support assessment in place in respect of X. I have not been provided with a copy of the formal child support determination. It is Ms Sheridan’s evidence that the current amount payable by Mr Omar is $28.00 per week, which is in arrears in an amount of $369.96.
It is Ms Sheridan’s evidence that her weekly level of expenditure exceeds her current income to a significant degree. She has assessed her weekly living expenses, for both her and X, as being $686.00 in total. Her major expenditure is for food ($100.00); utilities and heating ($131.00); clothing ($50.00); medical expenditure ($40.00); and motor vehicle running ($200.00).
It is Ms Sheridan’s evidence that she is currently living in rented accommodation. Her rent is $180.00 per week. She has no savings and no other assets of a significant value. She has recently sold a motor vehicle to support herself. It is her position that she is currently in a parlous financial position.
It is Ms Sheridan’s evidence that X has been diagnosed as being allergic to paracetamol and penicillin. As a consequence, she asserts that he is at significant risk, if he contracts an illness, which raises his temperature, as such an illness could not be treated with either of these medications. In these circumstances, she is concerned at the risks for X of attending either day care or some other form of child care.
As a consequence, Ms Sheridan has elected to be a full-time parent for X. Accordingly, it is her position that her responsibilities to provide care for X currently preclude her from returning to the workforce in any capacity whatsoever, at this stage or in the reasonably foreseeable future.
Mr Omar’s financial position
It is difficult, if not close to impossible, to determine what Mr Omar’s financial position is, given the dearth of documentation provided by him in respect of it. It is however, Ms Sheridan’s position that Mr Omar, when compared to her, is comfortably off financially, with the capacity to earn $45.00 per hour from his self-employment as a (occupation omitted).
In his unsatisfactory and untested statement of financial circumstances, Mr Omar asserts that his average weekly income is $1,697.00, which on my calculations equates to an annual income of approximately $88,000.00. Mr Omar asserts that the major component of this sum is rent of $1,000.00, which he receives from a tenant.
Mr Omar asserts that his weekly level of expenditure is $1,324.00. This sum includes mortgage payments of $475.00 and a motor vehicle payment of $228.00. It is his position, unsupported by any documentary evidence, that the child support assessment in respect of X is $107.00 per week.
Mr Omar has provided as his address (omitted), Queensland. In his statement of financial circumstances, Mr Omar has indicated that he owns this property. He has indicated that the current value of his interest, in the property, is $4,500.00. I am not sure whether this is a typographical error, as Mr Omar has also indicated that he owes $326,280.00, in respect of a mortgage secured against the property.
In these circumstances, it does not seem unreasonable to assume that Mr Omar is asserting that the property is worth $450,000.00. However, I have not been provided with any formal evidence as to the value of the property or what it comprises. It seems to be the case that Mr Omar shares the property with a tenant who pays him some amount of rental.
Mr Omar has further deposed that he has modest superannuation of around $14,000.00; savings of just over $3,400.00; and a motor vehicle, which is subject to a loan of $52,000.00. He further asserts that he has a tax debt of $15,480.00. I have not been provided with any the documents specified in Rule 24.05 of the Federal Circuit Court Rules 2001, which require disclosure of such financial documents as recent business activity statements; tax returns; pay slips; and bank statements; in maintenance proceedings.
The legal principles applicable
In order to make an order for de facto maintenance in the terms sought by Ms Sheridan, the court must be satisfied that it has the necessary jurisdiction to do so. The powers of the Federal Circuit Court are defined by statute. In family law matters, the jurisdiction of the court arises from the Family Law Act 1975.
Pursuant to section 39B of the Act, the court is conferred with jurisdiction in de facto financial causes. The expression de facto financial cause is defined by section 4 of the Act and includes “proceedings between the parties to a de facto relationship (after that relationship has broken down) with respect to the maintenance of one of them as well as proceedings with respect to the distribution of property between those parties.”
In this case, Ms Sheridan, by necessary implication, invokes the jurisdiction of the court to resolve a de facto financial cause arising between her and Mr Omar. She seeks maintenance from Mr Omar. Accordingly, the jurisdiction of the court depends upon the existence of a de facto relationship, which has broken down, between the parties concerned.
The definition of de facto relationship is defined in section 4AA(1) of the Act as follows:
(1) A person is in a de facto relationship with another person if:
(a) the persons are not legally married to each other; and
(b)the persons are not related by family (see subsection (6)); and
(c)having regard to all the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis.”
In this case, it is clearly the case that Mr Omar and Ms Sheridan are not married and have never been. Equally, there is no suggestion that they are related in any way. Accordingly, it is necessary to consider the evidence relating to whether or not, during relevant periods of time, they lived together, as a couple, on a genuine domestic basis.
Section 4AA(2) is prefaced by the heading “Working out if persons have a relationship as a couple”. Thereafter the following circumstances are delineated, which may denote the existence of such a relationship. The list provided is not exhaustive and the factors on it are not specifically noted to be directive. They are as follows:
(a) the duration of the relationship;
(b)the nature and extent of their common residence;
(c)whether a sexual relationship exists;
(d)the degree of financial dependence or interdependence, and any arrangements for financial support, between them;
(e)the ownership, use and acquisition of their property;
(f)the degree of mutual commitment to a shared life;
(g)whether the relationship is or was registered under a prescribed law of a State or Territory as a prescribed kind of relationship;
(h)the care and support of children;
(i)the reputation and public aspects of the relationship.
Section 4AA(3) & (4) provide, in effect, that no particular finding is to be regarded as necessary or definitive before the court finds that a de facto relationship exists in the specific case with which it is concerned. Rather the court may have regard to the matters and attach weight to those matters as it considers appropriate to do so.
As such, the list of matters contained in section 4AA(2) is not to be regarded as some sort of checklist. Rather it is a guide. The court is required to apply individualised justice to the idiosyncratic circumstances of each particular case coming before.
In Taisha v Peng[2] Cronin J held that section 4AA(1) contained the mandatory requirements “for the existence or otherwise of a de facto relationship, whilst the matters listed in section 4AA(2) were to be utilised as a guide only for the purposes of the preceding sub section.”
[2] See Taisha v Peng (2013) 48 FamLR 150 at 152
Mushin J in Moby & Schulter[3] considered that the question of whether the parties concerned were in a de facto relationship “must be considered on a case-by-case basis without circumscribing any particular factor”. Accordingly, it is potentially erroneous for the court to attempt to isolate individual factors and attribute relative degrees of importance. It is the “composite picture” which is important.[4]
[3] See Moby & Schulter (2010) FLC 93-447 at 85,063
[4] See Taisha v Peng (supra) at 153
In Jonah v White Murphy J indicated that “the key” to the definition contained in section 4AA(1) was:
“…the manifestation of a relationship where “the parties have so merged their lives that they were, for all practical purposes, ‘living together’ as a couple on a genuine domestic basis”. It is the manifestation of “coupledom”, which involves the merger of two lives as just described, that is the core of a de facto relationship as defined and to which each of the statutory factors (and others that might apply to a particular relationship) are directed.”[5]
[5] See Jonah v White (2012) 45 Fam LR 460 at 471
In Moby & Schulter Mushin J considered that the concept of “genuine domestic basis” was not a term of art but must be given its ordinary meaning. In particular, he considered that due regard must be had to the circumstances of modern life, which necessarily has the potential to throw up diverse relationships outside of the norm, which could nonetheless be considered genuine domestic ones, in common parlance.[6]
[6] See Moby & Schulter (supra) at 85,067
Domestic derives from the Latin domus, literally a home. As an adjective, it pertains to the home, household or family affairs.[7] In this context Cronin J, in Taisha v Peng said as follows:
“… there must still be evidence of a domestic relationship. Mushin J in Moby said it was not a term of art but had to be given its ordinary meaning. I respectfully also adopt that because, having regard to s 4AA(4), the Court can take a wide discretionary view of the way in which the parties themselves conducted their relationship. Even having said that however, a domestic relationship must be one in which there are activities of running a household or shared households. That is, something must be seen to be related to domesticity which refers to home conditions and arrangements. For example, it could be indicated by people coming and going as if entitled to use and share the home’s facilities which is quite distinct from a boarding house or backpacking hostel where individuality reigns.
A couple therefore living in a domestic relationship is the opposite of a couple of individuals.”[8]
[7] See the Australian Oxford Dictionary
[8] See Taisha v Peng (2013) 48 FamLR 150 at 153
Again, in Jonah, Murphy J considered that, along with coupledom, a second specific element of a de facto relationship was the individuals concerned living together. In Moby & Schulter Mushin J said as follows:
“In my view, if a couple do not live together at any time, they cannot be seen as being in a de facto relationship. However, the concept of “living together” does not import any concept of proportion of time. In particular, it does not require that a couple live together on a full time basis. On the basis that one or both members of the couple may also be legally married or in another de facto relationship at the same time as they are in the subject relationship, it must follow that it is feasible that the subject relationship might involve the parties living together for no more than half of the time of that relationship. Further, there is nothing to suggest that it must be even as much as half of the time.”[9]
[9] See Moby & Schulter (supra) at 85,063 [140]
In Jonah v White[10] Murphy J held that the making of a declaration, pursuant to section 90RD, does not involve the exercise of a judicial discretion. Rather, it is an issue to be resolved by the determination of fact. He said as follows:
“The ultimate question is in the nature of a jurisdictional fact. In Corporation of the City of Enfield v Development Assessment Commission[11] the High Court held:
The term “jurisdictional fact” (which may be a complex of elements) is often used to identify that criterion, satisfaction of which enlivens the power of the decision maker to exercise a discretion.”
[10] See Jonah v White (2012) 45 Fam LR 460 at 466
[11] See Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135 at 148
The central question, which arises in this case, is whether the court has jurisdiction to make an order of the category sought by Ms Sheridan, at an interim or provisional stage, where the evidence regarding the nature of the relationship between her and Mr Omar is scant and untested, but necessarily that relationship can only be considered to be transitory in nature and, as such, axiomatically marked by a lack of mutual commitment, at least on any permanent basis.
Essentially, in a case of this kind, which is characterised by a lack of involvement by Mr Omar, is it necessary for the court to find, on the evidence available to it, that the essential jurisdictional fact of a de facto relationship existed between to the parties before it proceeds to make any order for de facto maintenance, either on an urgent basis or otherwise.
Having considered the legal provisions and case law relating to the nature of a de facto relationship, it is now necessary to consider the specific mechanisms, which apply to the making of a de facto maintenance order. These provisions are contained in Part VIIIAB of the Family Law Act 1975, which is headed Financial Matters Relating to De Facto Relationships.
Section 90SE(1) deals with the making of a de facto maintenance order. It provides:
“After the breakdown of a de facto relationship, a court may make such order as it considers proper for the maintenance of one of the parties to the de facto relationship in accordance with this Division.”
Section 90SG deals with urgent maintenance applications, it provides as follows:
“If, in proceedings with respect to the maintenance of a party to a de facto relationship in accordance with this Division, it appears to the court that:
(a) the party is in immediate need of financial assistance; and
(b)it is not practicable in the circumstances to determine immediately what order, if any, should be made;
the court may order the payment, pending the disposal of the proceedings, of such periodic sum or other sums as the court considers reasonable.”
Section 90SM(1)(a) deals with the alteration of the property interests of parties to a de facto relationship, it provides as follows:
“In property settlement proceedings after the breakdown of a de facto relationship, the court may make such order as it considers appropriate:
(a)in the case of proceedings with respect to the property of the parties to the de facto relationship or either of them--altering the interests of the parties to the de facto relationship in the property;”
The court is conferred with the authority, pursuant to section 90RD(1) of the Act to make a declaration as to the existence or otherwise of a de facto relationship. Pursuant to the section, if an application is made pursuant to any of sections 90SE, 90SG or 90SM, following the breakdown of a de facto relationship: “the court may, for the purpose of those proceedings … declare that a de facto relationship existed, or never existed [between the applicant for such a declaration and another specified person]”.
Accordingly, the section envisages the potential bifurcation of proceedings, relating to de facto financial causes, into a preliminary issue as to whether a de facto relationship existed between the parties concerned and what are termed the primary proceedings which relate to what follows from the making of such a declaration. Specifically, the court is authorised to make a declaration that a de facto relationship has never existed between the two persons concerned.
The power to make such a declaration is refined by section 90RD(2), which makes reference to other jurisdictional considerations relating to the exercise of the court’s power in respect of de facto relationships. They include the power to make declarations regarding the following:
·The period or periods of the de facto relationship;
·Whether there is a child of the de facto relationship;
·Whether one of the parties to the de facto relationship made substantial contributions;
·When the de facto relationship ended;
·Where each of the parties to the de facto relationship was ordinarily resident during it.
Pursuant to the provisions of section 90RE, the effect of such a declaration, as to the existence of a de facto relationship or otherwise, has the same effect as a judgment of the court. In addition, pursuant to the provisions of section 90RF any party to the proceedings concerned may apply for a declaration under section 90RD.
In her response filed on 20 November 2015, Ms Sheridan has applied to the court for the making of a declaration pursuant to section 90RD that she and Mr Omar lived in a de facto relationship between March 2013 and November 2013. In so doing, Ms Sheridan also alluded to other essential jurisdictional pre-conditions, which must be satisfied in all primary proceedings relating to a de facto financial cause.
The court’s authority to make any orders pursuant to sections 90SE (maintenance), 90SG (urgent maintenance) and 90SM (alteration of property interests) are subject to the satisfaction of two criteria. Firstly, a geographical criterion relating to the residence of the parties concerned in a participating jurisdiction [see section 90SD]. Secondly, satisfaction of at least one of the matters specified in section 90SB.
There is no controversy in the present case that the necessary geographical criterion has been satisfied. Section 90SB provides as follows:
“A court may make an order under section 90SE, 90SG or 90SM, or a declaration under section 90SL, in relation to a de facto relationship only if the court is satisfied:
(a)that the period, or the total of the periods, of the de facto relationship is at least 2 years; or
(b) that there is a child of the de facto relationship; or
(c) that:
(i)the party to the de facto relationship who applies for the order or declaration made substantial contributions of a kind mentioned in paragraph 90SM(4)(a), (b) or (c); and
(ii)a failure to make the order or declaration would result in serious injustice to the applicant; or
(d)that the relationship is or was registered under a prescribed law of a State or Territory.”
In the current case, neither Ms Sheridan nor Mr Omar contend that their relationship, in aggregate, exceeded a period of two years nor that it was registered under any applicable state or territory law. In addition, given its overall circumstances, Ms Sheridan is not in a position to assert that she made substantial contributions to the relationship which existed between her and Mr Omar no matter how it is characterised. Rather, her application turns on the fact of the birth of X and his undisputed parentage.
In many cases involving applications under Part VIIIAB, it will not be necessary for any party to apply specifically for a declaration under section 90RD because there is no controversy that a de facto relationship of the kind envisaged by section 4AA exists between the parties concerned, given the nature of that relationship. Accordingly, the court is able to move immediately to the resolution of the primary proceedings arising between the parties concerned.
For obvious reasons, given the circumstances of this case, I can readily understand why Ms Sheridan has wanted to invoke the jurisdiction of the court to make an explicit declaration as to the existence of a de facto relationship between her and Mr Omar. However, as Cronin J pointed out above, it is section 4AA(1) rather than section 90SB, which is definitive as the mandatory requirement for the existence or otherwise of a de facto relationship.
Essentially, I do not consider that the existence of a child alone can be the basis, at law, for the existence of a de facto relationship between the parties concerned. As is clear from the various authorities cited above, in controversial circumstances, the exercise of determining whether or not a de facto relationship exists is a more nuanced task requiring the consideration of a variety of matters relating to the nature of the coupledom between the individuals concerned.
One of the difficulties arising in this case is that Mr Omar has not specifically responded to either Ms Sheridan application for a declaration pursuant to section 90RD or her application for either de facto maintenance or urgent de facto maintenance pursuant to sections 90SE or 90SG respectively. The irony being that it is Ms Sheridan rather than he who has raised the issue of the need for the court to make a declaration as to the existence of a de facto relationship between them.
It now appears to be Ms Sheridan’s position that the court can proceed, on an undefended basis, to determine her application for de facto maintenance on the basis of her satisfaction of one of the gatekeeping criteria contained in section 90SB without the need for any definitive determination of the nature of the relationship between the parties.
The court cannot compel a respondent to engage with litigation, which may potentially affect his or her proprietary interests. It is however obliged to give a respondent the opportunity to put evidence before the court and, if he or she wishes to do so, contest any evidence relied upon by the applicant.
However, a respondent, whether by intransigence, disinterest or manipulation cannot succeed in denying an applicant a just resolution, according to law, to his or her application, by choosing not to take part in proceedings because they do not proceed in the manner of his or her preference.
As indicated above, Mr Omar commenced proceedings only in relation to parenting arrangements for X. He wished to have a relationship with his son in circumstances which, on any view were extremely challenging, given the high level of acrimony between the parties and the absence of any shared base of common experience between them in respect of parenting X.
In his initiating affidavit, Mr Omar deposed as follows:
“The mother and I commenced living together in an exclusive relationship in the same household in or about (omitted) 2013, for five weeks before I returned to Queensland. I then returned to live together (sic) in (omitted) 2013.
We were in a defacto (sic) relationship and were never married.
The final separation occurred in or around November 2013 and there is no prospect of reconciliation.”[12]
[12] See Mr Omar’s affidavit filed 30 June 2015 at paragraphs [13] – [16]
Ms Sheridan deposed as follows in her responding affidavit:
“I say that the father and I commenced a relationship in June 2012 and commenced living together in March 2013. We separated for a final time after multiple separations and reconciliations in November 2013.”[13]
[13] See Ms Sheridan’s affidavit filed 28 November 2015 at paragraph [2]
Order 13.1A of the Federal Circuit Court Rules 2001 deals with the court’s discretionary authority to enter judgment against a respondent if that respondent defaults in complying with a court order or fails to prosecute any proceedings with due diligence.
Given the context in which Mr Omar described the nature of his relationship with Ms Sheridan, namely an application for parenting orders, I am uncomfortable in taking his characterisation of the nature of the parties’ relationship as an admission against self-interest. In particular, Mr Omar has not specifically given evidence, in respect of the nature of the parties’ relationship in reference to Ms Sheridan’s application for financial orders.
Another difficulty arises as a consequence of the approximate date on which both parties assert the relationship between them, however it is characterised, came to an end – November 2013 – in the context of when Ms Sheridan commenced her application for de facto property orders – 20 November 2015.
Pursuant to the provisions of section 44(5) of the Act, a time limit of two years is to be applied to the making of an application for any de facto financial order. An application for a declaration under section 90SL or an order under any of sections 90SE, 90SG or 90SM must be made “within the period of 2 years after the end of the de facto relationship.” This two year period is referred to as the standard application period.
Accordingly, there is some ambivalence as to whether Ms Sheridan’s application falls within this period. However, the provisions of section 44(6) ameliorate the potential for any hardship to arise in respect of a person in Ms Sheridan’s position, particularly in regards to an application for maintenance, providing the court with a discretion to extend the limitation period. The sub-section reads as follows:
“The court may grant the party leave to apply after the end of the standard application period if the court is satisfied that:
(a)hardship would be caused to the party or a child if leave were not granted; or
(b)in the case of an application for an order for the maintenance of the party—the party’s circumstances were, at the end of the standard application period, such that he or she would have been unable to support himself or herself without an income tested pension, allowance or benefit.”
Pursuant to Rule 13.03A(2) a respondent is in default if, amongst other things, he or she has failed to:
·comply with an order of the court in the proceedings;
·file a response;
·produce a document as required; or
·defend the proceedings with due diligence.
If the court is satisfied that the respondent to an application is in default, in any one or more of these senses, pursuant to Rule 13.03B(2)(d) the court may “give judgment or make any other order against the respondent.”
I am satisfied that Mr Omar is in default in the sense envisaged by Rule 13.03A. He has not filed a reply, as ordered, in respect of Ms Sheridan’s application for spousal maintenance nor any affidavit evidence in respect of the issue. His statement of financial circumstances is not a compelling document. He has not appeared at the hearing of the application.
However, it remains the position that the court has a discretion to enter judgment in favour of Ms Sheridan. It is not obliged to do so merely because Mr Omar has not exercised his entitlement to take part in them. In Welsh v Diglin Pty Ltd the Full Court to the Federal Court considered a comparable power under the applicable rules of the Federal Court and determined that it was neither desirable nor necessary to attempt to identify all issues relevant to the discretion arising. Rather, each case must be considered on its own individual merits.[14]
[14] Welsh v Diglin Pty Ltd [2005] FCAFC 149
Accordingly, Ms Sheridan is not entitled, as of right, to the orders which she seeks. Rather, the onus remains on her to establish to the court that the orders which she seeks, are proper and justifiable according to the applicable legal considerations.
If the court is satisfied that it has jurisdiction to consider Ms Sheridan’s application, it is required to follow a stepped process, which was recently outlined by the High Court, in the context of married spousal maintenance applications, in the case of Hall v Hall.[15] I will attempt to paraphrase what was said in Hall utilising the corresponding section arising in Part VIIIAB.
[15] Hall v Hall [2016] HCA 23 at [4] – [5]
Pursuant to section 90SE(1) of the Family Law Act 1975, the court may make such order as it considers “proper” for the provision of maintenance to one of the parties to a de facto relationship, after the breakdown of the relationship.
The liability arising under this sub-section is crystallised by the making of an order under section 90SFwhich reads as follows:
“(1)In exercising jurisdiction under section 90SE (after being satisfied of the matters in section 44(5) and (6) and sections 90SB and 90SD) , the court must apply the principle that a party to a de facto relationship must maintain the other party to a de facto relationship:
(a)only to the extent that the first-mentioned party is reasonably able to do so; and
(b)only if the second mentioned party is unable to support himself or herself adequately whether:
(i) by reason of having the care and control of a child of the marriage who has not attained the age of 18 years;
by reason of age or physical or mental incapacity for appropriate gainful employment; or
(iii) for any other adequate reason.
(2)In applying this principle, the court must take into account only the matters contained in subsection (3).
The court is obliged take into account the matters contained in section 90SF(3) and only those matters, which are presented as a comprehensive checklist. They also include, by virtue of section 90SF(r) “any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account.”
In my view, the power to make a de facto maintenance order depends on the existence of a de facto relationship between the parties concerned. Once that relationship is established, the court must be further satisfied of the time limit matters arising from sections 44(5) & (6) and then the further jurisdictional considerations arising in respect of geography (section 90SD) and the threshold issues, relating to the nature of the de facto relationship in issue contained in section 90SB.
Essentially, in my view, satisfaction of one of the matters contained in section 90SB and the geographical criterion contained in section 90SD does not found the jurisdiction of the court to make a maintenance order between persons who are described as being parties to a de facto relationship.
In considering Ms Sheridan’s application for de facto maintenance, the court must be satisfied that:
· there is a de facto relationship between the parties concerned, which creates a de facto financial cause;
· the application is within time or hardship considerations apply;
· either or both of the parties were ordinarily resident in a participating jurisdiction;
· the court is satisfied of at least one of the matters contained in section 90SB;
· thereafter the court must consider, as a threshold issue, whether Ms Sheridan is unable to support herself by reason of any matter contained in section 90SF(1);
· thereafter what is Mr Omar reasonable capacity to supply any need of Ms Sheridan so arising;
· consideration of the matters contained in section 90SF(3);
· the discretion to award spousal maintenance to be exercised with “reasonableness in the circumstances” as the guiding principle.
Ms Sheridan’s application has been on foot since November 2015, which is approximately two years after the end of the relationship between the parties, however it is characterised. Her application is couched in terms of it being urgent within the parameters envisaged by section 90SG.
The power to make an order for interim de facto maintenance order is separate and distinct from the power to make an urgent order. The power to make an urgent order, pursuant to section 90SG, allows the court to order the payment “pending the disposal of the proceedings, of such periodic or other sums as the court considers reasonable” if a two-part condition is met.
First, it must appear to the court that a party to the de facto relationship “is in immediate need of financial assistance”. Second, it must be “not practicable in the circumstances to determine immediately what order, if any, should be made”.
Again the section speaks of the urgent maintenance of a party to a de facto relationship. However, the question arises whether the urgency of any particular situation are such that it is warranted to make an order under the section prior to the making of any declaration under section 90RD in circumstances where it may not be readily apparent that a de facto relationship exists between the parties concerned.
Discussion
In my view, I am required to determine whether or not there is a de facto financial cause requiring the court’s decision, in the context of Ms Sheridan’s application for maintenance. This question in turn depends on the existence or otherwise of a de facto relationship between the parties as defined by section 4AA of the Act.
In a complex case such as the present one, it is the court’s responsibility to carefully balance and consider all the relevant factors to arrive at a composite picture of what is the nature of the relationship between the parties concerned and whether, in Murphy J’s memorable phrase it is one of coupledom, particularly whether they lived together.
One element is not to be regarded as definitive in this exercise and each such case is idiosyncratic in nature. As such it requires the application of an individualised process of justice to all the relevant facts arising. Centrally, the court does not have a discretion as to whether or not to engage the jurisdiction contained in Part VIIIAB. It is either engaged, on the facts available, or it is not.
In this regard, I bear in mind what was said by Fitzgerald J in Lynam v Director-General of Social Security:
“Each element of a relationship draws its colour and significance from the other elements, some of which may point in one direction and some in the other. What must be looked at is the composite picture. Any attempt to isolate individual factors and to attribute to them relative degrees of materiality or importance involves a denial of common experience and will almost inevitably be productive of error. The endless scope for differences in human attitudes and activities means that there will be an almost infinite variety of combinations of circumstances which may fall for consideration. In any particular case, it will be a question of fact and degree, a jury question, whether a relationship between two unrelated persons of the opposite sex meets the statutory test.” [16]
[16] Lynam v Director-General of Social Security (1983) 52 ALR 128 at 131 approved by the Full Court in Harriott & Arena [2016] FamCAFC
The responsibility of the court is to consider whether the evidence available to it is sufficient to ground the resultant discretion as to whether or not to make a maintenance order or alter proprietorial interests. It is trite, but true nonetheless, that every human relationship is idiosyncratic, as the course of human interaction has the potential to throw up endless variations of conduct.
The essential findings, as to the existence or otherwise of the necessary jurisdictional precursor, may well turn on the court assessment of credit of the parties involved, as well as a close analysis of the factual circumstances surrounding those persons. In this particular case, the evidence before me is limited to affidavit evidence only. As a consequence, it is not possible for me to make assessments of credit.
In addition, in recent times, Mr Omar has only had a limited involvement in the case and has not been in receipt of independent legal advice about the complex issues, which this case potentially throws up. His initial affidavit material centred largely on issues to do with his aspiration to have some form of on-going relationship with X, which Ms Sheridan rigorously resisted.
In all these circumstances, it is extremely difficult, if not impossible, for the court to gauge whether the relationship between the parties satisfied the statutory definition of a de facto relationship contained in section 4AA of the Act.
In this context, I turn briefly to consider the various considerations outlined in section 4AA(2) which are useful, for the court, in working out what is the nature of the parties’ relationship. On any view, the relationship between the parties was brief in duration and, on Ms Sheridan’s evidence, marked by frequent separations.
In these circumstances, in my view, there is little cogent evidence to indicate that the parties shared a common residence for any lengthy period of time. They did not purchase a property for their common use. There is no evidence as to how any of their relatives or friends viewed the nature of the relationship between them or whether they engaged in any social activities together.
Ms Sheridan claims that Mr Omar exploited her financially between April and July of 2013 by prevailing upon her to pay some of his recurrent bills in an amount in excess of $5,000.00. From her perspective, I accept that this was a significant sum of money. She also complains that, during the period the parties cohabited, between March and November of 2013, Mr Omar did not contribute to household utilities. In my view, this evidence is not indicative of any strong degree of financial interdependence between the parties. The parties did not acquire any significant items of property together.
Clearly, given the advent of X, it was a sexual relationship. However, following his birth there was controversy between the parties as to how his birth was to be registered. Ms Sheridan asserts that Mr Omar would not sign the necessary papers to avoid child support; Mr Omar asserting that Ms Sheridan delayed registration so that his surname would not be assigned to the child.
It is Mr Omar’s case that Ms Sheridan has actively sought to prevent him being involved in X’s life, other than as a source of financial support for him. Certainly, at this stage, there is no evidence to indicate any commonality, between Ms Sheridan and Mr Omar as to how X is to be parented. The evidence of each party is that Mr Omar has spent time with the child on only a handful of occasions.
On any view, the relationship between the parties was short and unhappy. There is currently scant evidence of any significant form of coupledom. The most powerful evidence of a de facto relationship is X. I have not been provided with any evidence, which I appreciate is necessarily sensitive, as to the circumstances surrounding the child’s conception. However, the indications seem to be that the advent of the child did not place the parties’ relationship on to more concrete foundations. Mr Omar no has no physical interaction whatsoever with the child.
In all the circumstances of this case, I do not consider that it be appropriate for the court to enter judgment in favour of Ms Sheridan by making a declaration that a relevant de facto relationship existed between the parties, on the basis that Mr Omar has inadequately defended the proceedings. I do not consider that this would be an appropriate exercise of the discretion arising under Rule 13.03B.
In Norton & Locke[17] the Full Court considered the jurisdiction of this court to make an injunction, at the interim stage, pursuant to section 114(2A) of the Act which authorises such injunctions in proceedings involving a de facto financial cause. The Full Court held as follows:
“The terms of s 114(2A) are clear; the court’s power to grant injunctions pursuant to the section can only be granted “in a de facto financial cause”. There is no “de facto financial cause” until a de facto relationship is established and the additional ss 90SK and 90SB conditions met. Until they are met – that is, relevantly, a decision has been made by the court consistent with the case advocated by the respondent – there is no “de facto financial cause” and no jurisdiction to make an order of the type contemplated by s 114(2A). (Nor, it might said (sic), more broadly pursuant to s 90SM or s 90SE as sought by the respondent in the substantive proceedings).”[18]
[17] Norton & Locke (2013) FLC 93-567
[18] Ibid at 87,602 – 3 [18]
I am bound by this authority. In the absence of a finding that a de facto relationship existed between Mr Omar and Ms Sheridan, I have no jurisdiction, pursuant to Part VIIIAB of the Act, to make any orders in respect of maintenance or the alteration of property. There is no jurisdictional fact in the sense described by Murphy J earlier.
The question remains, however, whether the court has authority to make orders, of the type sought by Ms Sheridan, by another means. This also was a question considered by the Full Court in Norton & Locke.
The Full Court was of the view that the court plainly has jurisdiction to determine if it has jurisdiction and inherent to such a jurisdiction the power to make orders that are necessary for the determination of issues relevant to that jurisdiction.[19]In Norton & Locke the Full Court said as follows:
“Within that jurisdiction and within the ambit of powers just described, this court has the power to make what this court has described as “holding orders” pending the determination of the jurisdictional facts necessary to found jurisdiction. Orders of that type can include, specifically, orders for interlocutory injunctions…”[20]
[19] Ibid at 87,607 [43]
[20] Ibid at 87,607 [44]
The basis of this jurisdiction is to prevent abuses of the court’s processes. In this context, the Full Court considered the question of whether a statutory court, such as the Federal Circuit Court, which is not expressed to be a superior court of record, nonetheless had jurisdiction to determine whether it had jurisdiction to determine any particular matter and incumbent within that jurisdiction the power to make orders necessary to the exercise of that jurisdiction and the control of its own processes.
After considering a number of authorities, the Full Court said as follows:
“For the preceding reasons, we are of the view that the Federal Circuit Court has the jurisdiction to determine whether “...it has the jurisdiction which has been purportedly invoked” and, within that jurisdiction, has the power to “control its own process” and prevent an abuse of same which extends, in “compelling circumstances”, to an order maintaining the status quo pending a determination regarding jurisdiction.”[21]
[21] Ibid at 87,610 [59]
An interesting case, in the context of the factual issues arising in this matter, is Cronin J’s decision in Moby & Schulter,[22] which arose at an interim stage prior to Mushin J’s final determination of the case, particularly whether or not a relevant de facto relationship had been established. In that case, Cronin J ordered the payment of modest sums of money to the applicant concerned, prior to what was characterised as a short hearing.
[22] Moby & Schulter [2009] FamCA 1285
Cronin J noted that one of the difficulties confronting the court was that it was not clear whether the court could deal with what was described as an urgent application, when there is a jurisdictional dispute. The matter was determined prior to Norton & Locke.
Accordingly, it seems to me that this issue has now been determined in the negative, other than in exceptional and compelling circumstances of urgency, if it is considered necessary for the court to make some form of provisional order to safeguard the integrity of its own processes.
In the case before Cronin J, the jurisdiction issue related to when the de facto relationship in question ended, which I assume had relevance to whether it could be dealt with before a court of federal jurisdiction, this in turn depending on the commencement of the relevant federal legislation.
His Honour determined that he had sufficient evidence to make a declaration pursuant to section 90RD for the purpose of an order under section 90SG – the urgent maintenance power – notwithstanding the absence of a full hearing of all relevant evidence and a definitive finding of jurisdiction events, particularly when the relationship ended. His Honour said as follows:
“In this case, a finding as to the relationship is at least open on the untested evidence because both parties have acknowledged that they had some sort of relationship, bearing in mind that s 4AA gives the court a very wide discretion to define what a relationship really means.”
His Honour also made reference to the powers of the court arising under section 90RH of the Act, which allow any person affected by a declaration under section 90RD to apply to have the declaration set aside or varied if any new fact or circumstance comes to light, which has not been previously disclosed. As a consequence, Cronin J determined as follows:
“It is quite clear under s 90RH that new facts and circumstances can be raised, and if the jurisdictional argument is so put before the court, the court must rule upon it. I am satisfied, therefore, for the purposes of today’s exercise, limited as it is, that there is sufficient evidence for me to find that there was a de facto relationship and that because of the interdependence upon one another, or certainly on the basis of dependence by the applicant upon the respondent up and until some time in 2009, a declaration can be made that the parties were in a de facto relationship up until early November 2009. That, in my view, is sufficient to give rise to the jurisdiction for the court to make an order for urgent maintenance.”[23]
[23] Ibid at [14]
Accordingly, in some ways, the matter before Cronin J in Moby & Schulter is comparable to the current one. It was, like the application before me, an application for urgent spousal maintenance, which arose in the context of a brief interim hearing and where there was an absence of a concluded finding regarding the nature of the de facto relationship in question.
However, unlike Cronin J, I do not consider that there is currently sufficient evidence before me to conclude that there was a de facto relationship between the parties concerned. In addition, given the length of time the proceedings have been on foot, I do not consider that it would be in the interests of justice for holding orders to be made on an urgent basis.
Accordingly, I have reached the conclusion that there is not sufficient evidence before me “to give rise to the jurisdiction for the court to make an order for urgent maintenance”. For all these reasons, I decline to make the order sought by Ms Sheridan, at this interim stage. It is not therefore necessary for me to consider specifically the matters arising in respect of section 90SE and 90SF of the Act.
What next?
The absence of a contradictor to the position of Ms Sheridan renders this a problematic question. I cannot compel Mr Omar to take part in these proceedings. But at the same time, his absence from them cannot authorise the court to make any order outside its jurisdiction or which would be neither proper nor just and equitable.
As is clear from these reasons for judgment, I am gravely concerned that Ms Sheridan will be unable to provide evidence of the essential jurisdictional fact required to found her application. I am not prepared, at this stage, to either infer such a jurisdiction from the evidence currently available to me, or regard it as conceded, on the basis that Mr Omar acknowledged a de facto relationship in the context of his initial application to spend time with X.
On the basis of the evidence currently available to me, in my view, there are few indications that the parties were consciously engaged in being a couple for any reasonably lengthy period of time. There is little evidence of any joint purpose or shared endeavour between them, apart from X. However, so far as his care is concerned, there is scant evidence that their relationship was based on any shared parental aspirations.
Issues to do with the direct financial support of X are to be determined according to the provisions of the Child Support (Assessment) Act 1989 and related legislation. The existence of a parental financial obligation to support children arises as a consequence of a biological relationship between parent and child, in respect of which the nature of the relationship between the parents concerned is not relevant.
Mr Omar has a financial obligation to support X. If Ms Sheridan is aggrieved with the level of support provided to her, for X, by him, she has avenues available to her distinct to those potentially open under Part VIIIAB of the Family Law Act 1975.
Issues regarding the obligation of a parent to support the other parent, if the relationship between them produced a child are different in nature. The relationship must fall within the definition of being a de facto relationship. In my view, the simple existence of a child does not automatically trigger the existence of such a relationship. In my view, this would be a misapplication of section 90SB.
The matters listed in that section, which include a child of the de facto relationship, arise for consideration only after the court is satisfied that the jurisdictional precursors are satisfied and are relevant to the exercise of the court’s discretion to make orders under any of sections 90SE, 90SG and 90SM.
As such, it is a misconception to assert that the existence of a child automatically translates a relationship between parties, which would otherwise fall short of a de facto relationship, into such a relationship. Rather, the satisfaction of one of the criterion provided by section 90SB is an essential condition precedent to the exercise of the discretion conferred by sections 90SE, 90SG and 90SM, after a de facto relationship has been established.
Accordingly, in my view, in the current case, the existence of X alone, which ostensibly satisfies the condition precedent provided by section 90SB is insufficient to found Ms Sheridan’s application at this stage. The next question is whether the court should exercise its jurisdiction to dismiss Ms Sheridan’s application on the basis that it has no reasonable prospects of success, notwithstanding the lack of opposition to it provided by Mr Omar at present.
Section 17A of the Federal Circuit Court of Australia Act 1999 (Cth) provides as follows:
“(1)The Federal Circuit Court of Australia may give judgment for one party against another in relation to the whole or any part of a proceeding if:
(a)the first party is prosecuting the proceeding or that part of the proceeding; and
(b)the Court is satisfied that the other party has no reasonable prospect of successfully defending the proceeding or that part of the proceeding.
(2)The Federal Circuit Court of Australia may give judgment for one party against another in relation to the whole or any part of a proceeding if:
(a)the first party is defending the proceeding or that part of the proceeding; and
(b)the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding.
(3)For the purposes of this section, a defence or a proceeding or part of a proceeding need not be:
(a) hopeless; or
(b) bound to fail;
for it to have no reasonable prospect of success.
(4)This section does not limit any powers that the Federal Circuit Court of Australia has apart from this section.”
Rule 13.10 of the Federal Circuit Court Rules 2001 reads as follows:
“The Court may order that a proceeding be stayed, or dismissed generally or in relation to any claim for relief in the proceeding, if the Court is satisfied that:
(a)the party prosecuting the proceeding or claim for relief has no reasonable prospect of successfully prosecuting the proceeding or claim; or
(b)the proceeding or claim for relief is frivolous or vexatious; or
(c)the proceeding or claim for relief is an abuse of the process of the Court.”
The jurisdiction of the court to dismiss a claim upon the basis that it discloses no reasonable cause of action is to be sparingly invoked.[24] The case “must be very clear indeed to justify the summary intervention of the court to prevent a plaintiff submitting his case for determination … by the court …”[25]
[24] See McKellar v Container Terminal Manager Services Limited (1999) 165 ALR 400 per Weinberg J at 415 [12]
[25] See Dey v Victorian Railway Commissioners (1949) 78 CLR 62
In Webster v Lampard[26] the High Court said as follows:
“The power to order summary judgment must be exercised with exceptional caution … and should never be exercised unless it is clear that there is no real question to be tried.”
[26] See Webster v Lampard (1993) 177 CLR 598 at 602
In McKellar Weinberg J, after summarising the various authorities, relating to summary dismissal, said as follows:
“… a proceeding should not be dismissed summarily merely on the ground that it appears, at the early stage of the hearing of the motion brought for that purpose, to advance a highly implausible claim which will very probably fail, but only where the claim may properly be described as unarguable, and almost incontestably bad, or where the claim is otherwise objectionable as an abuse of the process of the court.”[27]
[27] Ibid at 416 [18]
Although on the basis of the evidence currently available to me, I consider Ms Sheridan’s case for relief to be weak, I do not consider that I am able to conclude, at this stage, that it is destined to fail or is inherently hopeless. The fact remains there was some form of relationship between the parties, albeit a brief and unhappy one, which did produce a child.
In these circumstances, I believe that it is appropriate to fix the matter for final hearing. It would be prudent for Mr Omar to seek legal advice and file a formal response to Ms Sheridan’s application for a declaration under section 90RD but whether he does so or not is a matter solely for him.
For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.
I certify that the preceding one hundred and forty-five (145) paragraphs are a true copy of the reasons for judgment of Judge Brown
Date: 6 July 2017
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