PALMER & STYLES

[2015] FamCA 58

FAMILY COURT OF AUSTRALIA

PALMER & STYLES [2015] FamCA 58

FAMILY LAW – CONTRAVENTION – mother made oral application to dismiss father’s contravention application – where contravention does not show serious disregard – application of s 60I – further consideration of Application for Contravention adjourned pending the parties’ attendance at Family Dispute Counselling.

Family Law Act 1975 (Cth) s 60I

Bigg v Suzi (1998) FLC 92-799
Aldred &Aldred (1986) FLC 91-753
Elspeth & Peter; Mark & Peter; and John & Peter (2007) 212 FLR 214
Spellson& Spellson (1989) FLC 92-046
Stavros & Stavros (1984) FLC 91-562
Stevenson & Hughes (1993) FLC 92-623

APPLICANT: Mr Palmer

RESPONDENT: Ms Styles

INTERVENOR:

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: ADC 4906 of 2012

DATE DELIVERED: 3 February 2015

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Berman J

HEARING DATE: 3 February 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Palmer in person

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT: Mr Koufalas

SOLICITOR FOR THE RESPONDENT: Duncan Basheer Hannon

Orders

1. That the oral application of the mother for the summary dismissal of the Application for Contravention filed by the father on 23 December 2014 is refused.

2. UPON NOTING that the parties are to attend for s 60I Family Dispute Resolution counselling, the father’s Application for Contravention filed 23 December 2014 be adjourned for further hearing at 9.15 am on 26 March 2015.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 4906 of 2012

Mr Palmer

Applicant

And

Ms Styles

Respondent

REASONS FOR JUDGMENT

1. On 11 June 2014 a parenting order was made in respect of the arrangements in which the children, J born in 2001 and M born in 2005, shall live with and spend time with each of their parents.  The orders provided that during the relevant period under consideration, namely until 15 August 2016, the children shall live with the father each alternate weekend from the conclusion of school on Thursday to the commencement of school on the following Tuesday, for one half of school holiday periods with other times, and for one half of the Christmas holiday period, subject again to further conditions.

2. It is alleged by the father that on 18 December 2014 at 5.30 pm upon his attendance at a property situated at I Street, Suburb A the mother, without reasonable excuse, did not allow the child, M, to be collected by the applicant father pursuant to paragraph 5(a)(3) of the order.  Presumably the parties were not able to reach any agreement in respect of a resolution of the dispute and on 23 December 2014 the father caused to be filed an application alleging contravention by the mother in the above terms.

3. The applicant father appears as a self-represented litigant.  The mother appears represented by her solicitor, Mr Koufalas.

4. At the commencement of the hearing I raised with the father and Mr Koufalas that there may be an impediment to the Court hearing and determining the contravention application today. That impediment potentially arises following a consideration of the provisions of s 60I of the Family Law Act 1975 (Cth) (“the Act”), namely that section which appears in subdivision E of the Act relating to family dispute resolution.

5. The import of the section is set out in the objects at s 60I(1), namely to ensure that all persons who have a dispute about matters that may be dealt with by an order under Part VII make a genuine effort to resolve that dispute by family resolution before the Part VII order is applied for. The legislative impact of the objects are enunciated in s 60I(7) in the following terms. Subject to ss (9), a Court exercising jurisdiction under this Act must not hear an application for a Part VII order in relation to a child unless the applicant files in the Court a certificate given to the applicant by a family dispute resolution practitioner under ss (8). The certificate must be filed with the application for the Part VII order.

6. The focus of s 60I(1) and (7) is clear, namely to require parties to attempt to resolve their parenting differences in a more child-focused and efficacious fashion by resort to family dispute resolution before an application is filed. There are, however, exceptions to the obligation requiring the parties to attend family dispute resolution prior to a Part VII parenting order issue being heard and determined and they are to be found in the provisions of s 60I(9) of the Act.

7. It is conceded by the father and the mother’s counsel that the relevant part of s 60I(9) is subsection (c), which requires the following conditions to be satisfied:

   i)The application is made in relation to a particular issue.

   ii)A Part VII order has been made in relation to that issue within the period of 12 months before the application is made.

   iii)The application is made in relation to a contravention of the order by a person.

   iv)The court is satisfied that there are reasonable grounds to believe that the person has behaved in a way that shows a serious disregard for his or her obligations under the order.

8. It must be the case that ss (i), (ii) and (iii) are satisfied.  The focus therefore is in respect of ss (iv).  It seems to me, given a reasonably clear understanding of the father’s case at its highest, and the response of the mother as set out in her affidavit filed 16 January 2015, that even were I to find that a contravention has taken place and that the mother does not have a reasonable excuse that it is unlikely the contravention would fall into the category of a serious disregard for the orders and obligations created by the order.  Therefore it must be less serious and accordingly, I am of the view that in respect of the father’s application for contravention it would not be proper, or indeed permissible, to hear that application to its conclusion without requiring the parties to attend for family dispute resolution.

9. Given the nature of the matters raised by the father it would seem that family dispute resolution may indeed be a better process than that which he contemplates by an application for contravention, but that is a matter for the father. Subject to the next matter that I will consider, the father is entitled to bring his application and have it heard and determined. It is just that in this case I consider that the obligations created by s 60I need to be satisfied before that process can occur.

10. I stood the matter down to enable the parties to give consideration to whether their proceedings could be the subject of resolution.  Obviously I am not entitled to know what was discussed, but on the matter being called back before me I was told that the parties were not able to resolve their differences. 

11. Importantly however, Mr Koufalas, on behalf of the mother, makes an application that I should summarily dismiss the father’s contravention proceedings. That application should be heard and determined before the parties attend s 60I family dispute resolution. If there is no application for contravention then clearly there is no focus for s 60I. It would make a nonsense of the section if the parties were obliged to undertake counselling simply because of the existence of an application, only to find that the application is without merit in the sense of an application for summary dismissal. Accordingly, I propose to hear and determine that oral application before the matter proceeds further.

12. The first consideration is to determine whether this Court has the power to grant an application for summary dismissal.  The power to do so can be found in the decision of Nygh J in Aldred &Aldred (1986) FLC 91-753, and was subsequently considered and given approval by the Full Court in the later decision Spellson& Spellson (1989) FLC 92-046.

13. The real issue is not whether there is the power to do so.  I consider that to be a concluded position, but when it is appropriate to exercise that power.  It is a significant and dramatic step to summarily strike out and dismiss an application and deny a party to the proceedings a right to have heard and determined his or her application.  To the extent that matter is more strongly to be emphasised is in circumstances where the dispute is as to proceedings under part VII dealing with children.

14. In Aldred (supra), Nygh J commenced his consideration of the power to dismiss an application by reference to the provisions of the then High Court rules.  The ability to dismiss an application or bring an application to stay proceedings arise in circumstances where there is not a reasonable or probable cause of action or suit, the proceedings are vexatious, and oppressive or an abusive process of the Court. See also Bigg v Suzi (1998) FLC 92-799

15. The test therefore requires an examination of whether the circumstances as alleged by the father in his application for contravention taken at their highest would not allow for a reasonable or probable cause of action.  In summary, whether the case is doomed to fail or has no reasonable likelihood of success.  To determine that issue the consideration must be confined to the matters raised by the applicant in his affidavit.  Whilst in this case, somewhat unusually, the mother has filed an affidavit in circumstances where she is not obliged to do so, I do not have regard to those matters.  That is, the matter stands or falls on the evidence proposed to be led by the father.

16. Mr Koufalas argues that the order creates an obligation which required the mother to effect the handover of the children and that according to the father’s affidavit at para 12 – 14, that occurred. 

    [12]On 18 December 2014 at 5.30 pm I attended the mother’s house to collect the children.

[13][M] came out of the mother’s house and got into my car.  This was somewhat unusual as normally she would have a number of bags and belongings with her.  She then proceeded to ask me if she could be returned to the mother’s house on Sunday, 21 December 2014.  I replied saying, “I am sure we can sort something out and I will speak directly with mum about it,” and that we can discuss it later.  I then asked her to go and get her sports bag, her sports shoes, as she would need them.  She went back inside the house and did not return.

[14][J] came out of the house with a number of his belongings and got into the car.

1. The summary is that M came into the father’s care by getting into the car but that he sent her back into the home to collect some sports shoes.  M did not return, J did, and ultimately the father left with J but not M.

2. It is the essence of the argument of Mr Koufalas that the order was complied with upon M entering the father’s car.  Once M was allowed to leave the car, it is suggested, there was no longer any obligation on the mother to require M to return.  The father argues that there is what might be, or should be, considered as a continuing obligation on the mother to effect the handover and compliance with the order.  The father speaks in his submissions of his concern that the mother did not or does not promote the order and promote the time between the child and himself.  Obviously they are matters for evidence and further submission, but the issue of continuing obligation is an interesting aspect to this case.  Is it the case that once M was allowed to leave the car there is no longer an obligation on the mother to comply with the order or is it reasonable that the mother’s obligation continues for some time after?  It is not that in respect of this application I intend to make a definitive decision as to whether or not there was or was not a continuing obligation.  The issue is to determine whether there is an arguable case, not the success or otherwise of that case. 

3. A useful starting point is the decision of Stavros & Stavros (1984) FLC 91-562, in which Hogan J dismissed an application for contravention. In that case the wife did not make the child available. The father argued that she had an obligation to do so but his Honour dismissed the contravention on the basis that unless the order was made with sufficient clarity a contravention application could not stand. The husband argued that there was a clear obligation on the wife to take reasonable steps to provide the child at the commencement of time. Stavros has been considered in a number of subsequent decisions, but I think it is fair to say that the issue in respect of compliance resonates with the obligation that an order places upon a party.

4. In Elspeth & Peter; Mark & Peter; and John & Peter (2007) 212 FLR 214 at [25] the following is recorded:

   The obligation to ensure compliance with a parenting order carries with it more than merely an obligation to remain passive.  It requires a positive application of parental authority.  A parent cannot be said to deny a child medical or dental treatment or an education merely on the basis that such denial complies with a child’s expressed wishes.  A parent has an obligation to ensure, so far as possible, compliance with the orders of the Court where those orders reflect the Court’s determination of what is in the best interests of the child.

5. The father would argue that there is an obligation on the mother to comply with orders of the Court, not just in the mechanics but in the spirit of the order.

6. The Full Court in Stevenson & Hughes (1993) FLC 92-623 at page 79,813 held than an order for time with a child imposes an obligation which goes beyond mere passive non-interference and it imposes upon the party who is obliged to give access a positive obligation to encourage that access.

7. This is not a case where at this stage it could be said that following M returning to the home there is necessarily a fundamental change in the circumstances of the order, namely that there is now a lack of clarity as to what is expected by the parties.  I do not know what the position will ultimately be until the evidence is heard, but it seems to me that the application for summary dismissal can be distilled down to a submission that there is a lack of clarity in the order and once M returned to the home from the father’s car the order, in effect, did not (or could not) regulate what was thereafter to occur.

8. At this stage I am not satisfied to find that the father’s case is likely to fail or lacks reasonable prospect of success.  It may be that there are difficulties in the evidence in support of his application. The father raises the allegation and the mother responds accordingly. 

9. Accordingly, I propose to dismiss the oral application made on behalf of the mother to summarily dismiss the father’s application for contravention.  It is proposed by me that once settled these reasons will be delivered.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Berman delivered on 3 February 2015.

Associate: 

Date:  10 February 2015