Panagi & Panagi
[2021] FedCFamC1F 135
•15 October 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)Panagi & Panagi [2021] FedCFamC1F 135
File number(s): SYC 8783 of 2020 Judgment of: HARPER J Date of judgment: 15 October 2021 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Application for summary dismissal of the mother’s claim by way of Amended Reply seeking child support departure orders under s 117 of Child Support (Assessment) Act 1989 – consideration of principles applicable to summary dismissal – Where no evidence filed in support of Amended Reply to establish satisfaction of s 116(2)(b) of Child Support (Assessment) Act 1989, any grounds in s 117(2) or whether orders would be just and equitable or otherwise proper – Where mother unable to establish any reasonable prospect of success for child support departure order – Overarching purpose - Where there is an arguable case to disallow amendment to the Reply due to non-compliance with the Family Law Rules 2004 and lack of evidence in support of amendment – Summary dismissal granted.
FAMILY LAW – CHILD SUPPORT – Application by way of Amended Reply for departure order for periodic child support by mother – Application for non-periodic order to pay school fees and health insurance – Where there is an existing administrative assessment – Where claim for child support departure order made in an Amended Reply, unsupported by any evidence – whether permitted under Family Law Rules 2004.
FAMILY LAW – PRACTICE AND PROCEDURE – Registrar – Review of decision for Father’s requirement to file reply documents to Mother’s Child Support Departure application – Orders discharged.
Legislation: Child Support (Assessment) Act 1989 (Cth) ss 116, 117, 124
Family Law Act 1975 (Cth) s 79
Family Law Repeal Rules2021 (Cth) sch 1
Family Law Rules 2004 (Cth) rr 4.17, 4.18, 9.04, 10.12, 10.13, 11.10, 12.02
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 1.07, 1.08, 1.13, 1.31, 2.54, 10.09, 10.10
Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 46, 67
Federal Court of Australia Act1976 (Cth) s 31A
Cases cited: Arthurman & Arthurman [2019] FamCAFC 214
Babbit & Babbit (2011) 46 Fam LR 77
Bigg & Suzi (1998) FLC 92-799
Cleaves & Cleaves [2021] FamCA 57
Ebner & Pappas [2014] FamCAFC 229
Lokare & Baum [2019] FamCA 196
Lysaght Building Solutions Pty Ltd (t/as Highline Commercial Construction) v Blanalko Pty Ltd (2013) 42 VR 27
Munnings v Australian Government Solicitor (1994) 68 ALJR 169
Ritter & Ritter and Anor [2020] FamCAFC 86
Saberton& Saberton [2013] FamCAFC 89
Seymour & Seymour [2011] FamCAFC 97
Spencer v Commonwealth of Australia (2010) 241 CLR 118
Warwick & Cutler [2016] FamCA 934
Webster v Lampard (1993) 177 CLR 598
Yewen & Child Support Registrar (2014) 290 FLR 366
Division: Division 1 First Instance Number of paragraphs: 54 Date of last submission/s: 7 October 2021 Date of hearing: On the papers Place: Sydney Counsel for the Applicant: Mr Campton SC Solicitor for the Applicant: Cominos Family Lawyers Solicitor for the Respondent: Karras Partners Lawyers ORDERS
SYC 8783 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR PANAGI
Applicant
AND: MS PANAGI
Respondent
ORDER MADE BY:
HARPER J
DATE OF ORDER:
15 OCTOBER 2021
THE COURT ORDERS THAT:
1.Paragraph 15 of the mother’s Amended Reply to the father’s Response to Initiating Application (Family Law) filed on 22 July 2021 be dismissed and the Amended Reply otherwise be struck out.
2.Orders 4, 5 and 6 made by Registrar Aitken on 29 July 2021 be discharged.
3.The Application in a Case filed on 19 August 2021 be otherwise dismissed.
4.The Applicant Mother pay the Respondent Father’s costs of the Application in a Case filed on 19 August 2021 as agreed or assessed in accordance with Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonyms Panagi & Panagi is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
HARPER J
These are parenting and child support departure proceedings between the mother Ms Panagi (“mother”) and the father Mr Panagi (“father”).
The parties were married in 2009 and separated on 25 March 2020.
There are two children of the relationship, X, born in 2014 and Y born in 2017 (“the children”).
On 7 December 2020 the mother commenced these proceedings. She filed an Initiating Application which sought for the parties to sell the former matrimonial home in Suburb C.
On 1 February 2021 the father filed a Response to Final Orders. In addition to the property proceedings, the father sought equal shared parental responsibility for the children with a week about arrangement for whom the children would live with. The mother filed a reply as to parenting on 8 March 2021.
The property aspect of the matter was finalised by consent pursuant to s 79 of Family Law Act 1975 (Cth) (“the Act”) before Justice Stevenson on 26 February 2021. This settlement included the father paying the mother a property adjustment of $6,000,000 in instalments.
On 10 March 2021 Senior Registrar Campbell (as then known) made orders for the parties to have equal shared parental responsibility and for the children to live with the mother, except for a gradual arrangement for the children to live with the father on each alternate weekend and overnight on Wednesdays.
On 22 July 2021 the mother filed an Amended Reply (“Amended Reply”) to the father’s Response to Initiating Application (Family Law) which, in addition to parenting arrangements, sought, as final relief by paragraph 15, a departure order pursuant to s 117 the Child Support (Assessment) Act 1989 (Cth) (“Assessment Act”) for the husband to pay periodic child support to the wife of $631.50 per week in respect of each child and non-periodic support pursuant to s 124 of the Assessment Act in the form of the payment of school fees and associated expenses, the mother and children’s private health insurance and all medical related expenses for the children not covered by the private health insurance.
On 29 July 2021 Registrar Aitken made a range of orders, in particular, Order 4 for the father to file and serve an Amended Response and Financial Statement within 21 days, Order 5 for the exchanging of documents pursuant to r 12.02 of Family Law Rules 2004 (Cth) and Order 6 for the parties to request for further and better particulars, answers to specific questions or documents. I will refer to these orders as the financial information orders.
The father filed an Application in a Case on 19 August 2021 which seeks a review of the financial information orders, for compliance with those orders to be stayed and for the Court to hear and determine the child support relief sought by the mother summarily or separately at this point in the proceedings with dismissal of paragraph 15 of the mother’s Amended Reply.
On 7 September 2021 I made orders by consent for the parties to file written submissions and for the father’s application to be dealt on the papers. The father filed his written submissions on 20 September 2021, the mother filed her written submissions on 27 September 2021 and the father filed his written submissions in reply to the mother’s submissions on 5 October 2021. Apart from a short procedural affidavit filed by the father together with his application for review, neither party relied upon any affidavit evidence.
THE LAW
The first question is whether the application for child support departure should be summarily dismissed or dealt with as a separate issue at this point in the proceedings. If the Court is not persuaded this should take place, as explained below, the mother’s application for child support departure orders could provide a basis for the requirements set out in the financial information orders.
For the purposes of summary dismissal or separate hearing, the husband, in his review application, relied upon r 10.12 and r10.13 of the former Family Law Rules 2004 (Cth) (“2004 rules”). These rules were repealed in total by the Family Law Repeal Rules2021 (Cth), sch 1. Since 1 September 2021, the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the new Rules”) apply. There is no transitional saving of the 2004 rules in the new Rules. The new Rules therefore apply to the determination the father’s review application.
Rule 10.09 and r 10.10 of the new Rules replicate the 2004 rules r 10.12 and r 10.13 respectively. Rule 10.09 gives the Court a discretion to order summary disposal of all or part of a case (r 10.11(1)). Rule 10.10 permits a party to apply for a decision on any issue, to be heard separately from the balance of the proceedings.
However, the Court retains a broad general discretion under r 1.31 to dispense with compliance or full compliance with any of the new Rules.
Pursuant to r 1.07 and r 1.08, the Chief Justice may issue practice directions, which are subject to the Rules. The new Family Law Practice Direction – Child support and child maintenance proceedings (“new practice direction”), published on 1 September 2021 applies to these proceedings. At par 1.5 it provides:
The Court retains the discretion to dispense with compliance with any provision of the new Rules at all times, including where application of the new Rules would operate unfairly or cause injustice.
I will apply the new Rules. I take account of the fact that par 1.5 of the new practice direction is subject to the Rules but provides some guidance on when it may be appropriate to exercise the Court’s discretion to dispense with compliance with the new Rules. I note that sub-r 10.09(2) and sub-r 10.10(2) require an application for summary orders and a separate decision respectively to be made with an approved form. I will dispense with these subrules, since the father’s review application was filed before 1 September 2021, and used the appropriate procedure and documents at the time of filing.
It should also be emphasised that as of 1 September 2021 the former Parts IV and IVA of the Act have been repealed. The power to order summary dismissal by a Judge of Division 1 in the new Federal Circuit and Family Court of Australia is now found in s 46 of Federal Circuit and Family Court of Australia Act 2021 (Cth) as follows:
46 Summary judgment
(1) The Federal Circuit and Family Court of Australia (Division 1) 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 and Family Court of Australia (Division 1) 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 and Family Court of Australia (Division 1) has apart from this section.
Section 46 applies to the determination of the father’s application for summary dismissal. The new practice direction made pursuant to the new Rules does not change this. It can be seen that s 46 continues the requirement for the Court to be satisfied that an application or claim has “no reasonable prospects of success”, before summarily dismissing it. It closely mirrors the wording of s 31A of the Federal Court of Australia Act1976 (Cth). Subsection (3) makes clear when establishing a finding that a claim has “no reasonable prospect of success” is different to a finding that an application is hopeless or bound to fail.
In Spencer v Commonwealth of Australia (2010) 241 CLR 118; (2010) 269 ALR 233; [2010] HCA 28, the High Court of Australia construed the expression “no reasonable prospect of successfully prosecuting the proceedings” in s 31A. The High Court pointed out that the legislation has introduced the concept of reasonableness in assessing the prospects of a claim. At [22], French CJ and Gummow J said the criterion of a “reasonable prospect” of success in analogous statutory settings has been taken to mean a “real” rather than “fanciful” prospect”, and the expression “no reasonable prospects of success” applies to a case in which the pleadings disclose “no reasonable cause of action and their deficiency is incurable.” They continued at [25]:
Section 31A(2) requires a practical judgment … as to whether the applicant has more than a "fanciful" prospect of success. That may be a judgment of law or of fact, or of mixed law and fact. Where there are factual issues capable of being disputed and in dispute, summary dismissal should not be awarded to the respondent simply because the Court has formed the view that the applicant is unlikely to succeed on the factual issue.
Additionally, at [22]:
It will include the case in which there is unanswerable or unanswered evidence of a fact fatal to the pleaded case and any case which might be propounded by permissible amendment. It will include the class of case in the longstanding category of cases which are "frivolous or vexatious or an abuse of process".
Hayne, Crennan, Kiefel and Bell JJ further held at [52]:
...effect must be given to the negative admonition in sub-s (3) that a defence, a proceeding, or a part of a proceeding may be found to have no reasonable prospect of successful prosecution even if it cannot be said that it is “hopeless” or “bound to fail”. ...[I]t is important to begin by recognising that the combined effect of sub-ss (2) and (3) is that the enquiry required in this case is whether there is a “reasonable” prospect of prosecuting the proceeding, not an enquiry directed to whether a certain and concluded determination could be made that the proceeding would necessarily fail.
The Full Court of this Court has recognised that there might be cases in which it appears that, although the respondent’s case is not hopeless or bound to fail, it has no reasonable prospects of success: Ebner & Pappas [2014] FamCAFC 229 at [62], and Arthurman & Arthurman [2019] FamCAFC 214 at [17], [18], where the Full Court cited with approval the interpretation of the “no reasonable prospects” test stated by the Victorian Full Court in Lysaght Building Solutions Pty Ltd (t/as Highline Commercial Construction) v Blanalko Pty Ltd (2013) 42 VR 27; [2013] VSCA 158 at [27]; [35].
The new rule 10.09 is in the following terms:
10.09 Application for summary orders
(1) A party may apply for summary orders after a response has been filed if the party claims, in relation to the application or response, that:
(a) the court has no jurisdiction; or
(b) the other party has no legal capacity to apply for the orders sought; or
(c) it is frivolous, vexatious or an abuse of process; or
(d) there is no reasonable likelihood of success.
The father did not identify any particular subparagraph of rule 10.09(1) (or 10.12 of the 2004 Rules) upon which he relied for summary disposal. The mother took no point about this. I infer from the parties’ submissions that they addressed the question of whether the mother’s application for child support departure orders had no reasonable prospects of success.
Two arguments of the father can be dealt with shortly. First, the father contended that the mother had failed to serve the application upon the Child Support Registrar pursuant to r 1.13 of the new Rules. However, there was evidence of service and acknowledgement by the Registrar provided in the mother’s submissions. I accept service took place in accordance with the Rules.
Secondly, the father argued that the mother had been predominantly non-compliant with the requirements of the new practice direction. He argued that she had failed to provide evidence of compliance, including the requirement of a party seeking orders to depart from an administrative assessment to seek leave of the Court (par 3.8), the filing of an Initiating Application (Family Law) to commence a child support proceeding (par 12.1) and the filing of a financial questionnaire and supporting affidavit (par 12.2).
The mother contended that s 117 of the Assessment Act does not require the mother to seek leave with any leave requirement being a product of the new practice direction. Additionally, the mother raised that the application for a child support departure was not commenced as an Initiating Application as it was proper within the now repealed 2004 rules to raise it in her Amended Reply (r 9.04). The mother made her application some two months before the new practice direction came into force in September 2021.
I prefer the mother’s arguments. There is no dispute that the mother has an administrative assessment from the Child Support Agency (“Agency”). An initial assessment ran from 25 April 2021 to 24 May 2022, obliging the father to pay an annual rate of child support of $16,076. This assessment was registered as collectable by the Agency on 25 April 2021, and remains collectible through the Agency. On 19 April 2021 the mother applied for a change of this assessment. A decision was delivered on 15 June 2021. The father’s annual obligation for child support was increased to $19,210 from 25 February 2021 with an increase in the father’s arrears by approximately $820.A copy of a notice of decision and statement of reasons made on 15 June 2021 by the Child Support Registrar under Part 6A of the Assessment Act was attached to the mother’s written submissions.
In my view, it would be unfair and cause injustice to the mother if the new practice direction was applied to her application with full rigour during a transitional period to the new Rules and practice direction. In Cleaves & Cleaves [2021] FamCA 57 (“Cleaves”) I found that attaching a copy of a decision, notice of decision or assessment made by the Child Support Registrar could constitute partial compliance with the requirement of the filing of evidence. The mother fulfils par 12.2(c) of the practice direction by providing in her evidence a copy of a notice of assessment.
However, these conclusions do not dispose of the father’s application for summary dismissal. Since the father has applied for summary dismissal, the question of the mother’s evidence has been squarely raised. It is trite law that on an application for summary disposal of a claim, the respondent’s evidence should be taken at its highest, unless inherently incredible or unreliable: Munnings v Australian Government Solicitor [1994] HCA 65; (1994) 68 ALJR 169 at 171; Bigg & Suzi [1998] FamCA 14; (1998) FLC 92-799; Webster v Lampard [1993] HCA 57; (1993) 177 CLR 598 at 608); Ritter & Ritter and Anor [2020] FamCAFC 86 at [66].
However, I am satisfied the mother’s application should be dismissed because she failed to adhere to the 2004 Rules in material respects, with the consequence that she has provided no evidence or factual basis upon which her claim to child support departure orders could be arguably sustained or her prospects assessed.
In her written submissions the mother contended at [8], [13] and [16] as follows:
[8] The mother’s Application was filed under the old Rules and observed the steps necessary to validly raise the child support cause of action as part of the concurrent parenting dispute.
[13] A concurrent parenting case is a sufficient foundation to bring an Application for child support as part of the dispute between the parties.
[16] The mother’s Application was not commenced by Initiating Application as it was raised during existing proceedings and it was proper under the old Rules to raise it in a Reply document. An Initiating Application would have been appropriate if the child support issue was being raised at the commencement of proceedings. This was not the case.
I reject these submissions. Division 4.2.5 of Part 4.2 of the 2004 Rules dealt with applications under the Assessment Act. Rule 4.17 required an application under the Assessment Act to be made in accordance with an Initiating Application (Family Law). Rule 4.18 required the applicant to file an affidavit setting out the facts relied upon in support of the application. The mother did not do any of these things. Rather she used the tactic of amending a Reply which also sought parenting orders. As pointed out, she argues this was permissible.
The Reply itself was a Reply to the father’s Response to an Initiating Application which raised parenting orders in response to property orders sought by the mother in her Initiating Application. Therefore the mother opposed the Father’s parenting orders, and sought “different orders in the cause of action mentioned in the Response” which was the criterion for a Reply in r 9.04 of the 2004 Rules. Therefore I am satisfied the Reply was filed in accordance with r 9.04. In my view, the Amended Reply was not.
Under the 2004 Rules, r 11.10 provided for amendment. Subrule 11.10(1) allowed a party to amend an “application or response” in various circumstances. In summary, those circumstances were “at any time before the procedural hearing at which the case is allocated the first day before the Judge”, by court order or with consent of the other parties. In the Dictionary of the 2004 Rules, “application” was defined to include a number of different applications, including an Initiating Application. It did not include a Reply. There is no separate definition of “response” or “Response”. On one view “response”, being un-capitalised, may properly be distinguished from a “Response” and arguably could include a Reply. But I doubt the power of amendment “at any time” without leave in r 11.10 extended to a Reply. Rather under the 2004 Rules amendment of a Reply probably required consent of the other parties or leave of the Court. But it is unnecessary to determine this question for present purposes.
This is because, on any view, the mother’s claim for child support departure order under the Assessment Act was not a claim seeking orders which are “different orders in the cause of action mentioned in the Response” of the father. The expression “cause of action” was not defined in the Dictionary to the 2004 Rules. The expression is defined in the new Rules, but this definition cannot be used to construe the repealed 2004 Rules. Be that as it may, the cause of action mentioned in the father’s Response was for parenting orders under Part VII of the Act in the best interests of the children. The mother’s application under the Assessment Act was clearly a different cause of action brought under an entirely different statute. The mother’s amendment to her Reply sought to introduce a cause of action which was not mentioned in the father’s Response. This was not authorised by the 2004 Rules. It is one indication why the amendment to the Reply required consent or leave of the Court. It was open to the mother to apply to the Court for leave to do so, seeking dispensation from the application of the relevant rules and specific order of the Court permitting it. But she did not take such a course.
Even if the mother could justify not employing an Initiating Application as required by r 4.17 of the 2004 Rules, and even if I am wrong in my conclusion about the Amended Reply raising an entirely different cause of action, more importantly, her claim to child support departure orders was not supported by any affidavit as required by r 4.18. In other words, there is no evidence which sets out the factual basis for her amendment.
I conclude that the July 2021 amendment to the mother’s Reply, which sought to introduce her claim for child support departure orders, was not made in accordance with Division 4.2.5 of Part 4.2 of the 2004 Rules.
In particular, the failure to provide any affidavit evidence to support the amendment means the Court is unable to conclude the mother has any arguable case and thus reasonable prospects of success in her claim for child support departure orders. The following discussion demonstrates why this is so.
The father contended that the mother had failed to establish jurisdiction by way of Division IV of the Assessment Act as she did not satisfy s 116(1)(b)(i) and (ii), which are in the following terms:
(1) A liable parent or a carer entitled to child support may, in respect of an administrative assessment of child support for a child, apply to a court having jurisdiction under this Act for an order under this Division in relation to the child in the special circumstances of the case if:
(b) both of the following apply:
(i) the liable parent or carer entitled to child support is a party to an application pending in a court having jurisdiction under this Act;
(ii) the court is satisfied that it would be in the interest of the liable parent and the carer entitled to child support for the court to consider whether an order should be made under this Division in relation to the child in the special circumstances of the case;
The Full Court has made clear that without a finding by the Court that s 116(1)(b) is fully satisfied, the Court would not have jurisdiction to hear and determine an application under s 117 of the Assessment Act: Seymour & Seymour [2011] FamCAFC 97 at [84]; Babbit & Babbit (2011) 46 Fam LR 77 at [134]; Saberton& Saberton [2013] FamCAFC 89 at [12]; Lokare & Baum [2019] FamCA 196 at [485].
The requirements of s 116(1)(b) should be construed in accordance with the purpose of the Assessment Act. Numerous decisions under the Assessment Act have held court proceedings regarding child support assessments should be the exception rather than the rule because the Assessment Act establishes a detailed administrative framework to deal with child support applications. The circumstances in which departure applications are to be heard by the Court are limited, given the desirability of such issues being determined in a manner characterised as being less adversarial, whilst, at the same time, remaining fair: Yewen & Child Support Registrar (2014) 290 FLR 366; [2014] FCCA 2399 at [79]; Warwick & Cutler [2016] FamCA 934, particularly at [59]. As already established, the parties have already engaged in the administrative processes of the Child Support Agency.
The mother provided no evidence, and made no submissions, as to why the circumstances of the present matter are “special” nor why it would be in the interests of both parties for the Court to consider making child support departure orders: see my comments in Cleaves at [25].
The mother maintained that a determination that considers s 116(b)(ii) of the Assessment Act can only be made upon complete consideration of the evidence adduced by each party at a trial. In my view, this cannot be correct. If this submission was accepted, any claim for child support departure orders would be maintainable to final hearing. As pointed out in Cleaves at [14], an interim application for a child support departure order requires satisfaction of s 116(b)(ii) on the basis of some evidence, even if only in the truncated form used at interim hearings. Similarly, the mother provided no evidence to establish any ground for a departure order under s 117(2) of the Assessment Act and why it would be just and equitable for the Court to make such an order. It is here that the absence of any evidence from mother in support of her claim, which the 2004 rules required, is important. If the mother had complied with those rule and filed an affidavit setting out the facts which she contends would support her departure orders, there would be some factual basis to assess her prospects of success. But there is none. A claim does not have reasonable prospects of success just because it is made.
Accordingly, I am not satisfied the mother’s claims articulated in paragraph 15 of her Amended Reply have any reasonable prospects of success. The Court should exercise its discretion to dismiss paragraph 15.
I am fortified in this conclusion by recognising the parties have already engaged with the administrative process with the Agency, which is the preferred process, and evidence provided by the mother shows the Agency has given close attention to their financial circumstances. I express no view about the correctness or otherwise of the Agency’s decisions. The mother puts forward no cogent reason why this Court should entertain her claim to a departure order, especially in light of the Court’s statutory duty to promote the overarching purpose in s 67 of the new Act to dispose of proceedings “quickly, inexpensively and efficiently”.
In light of these conclusions, I do not consider it is necessary to deal with the father’s application for separate determination.
For completeness and separately, I make clear that I would have also have disallowed the amendment to the Reply for the same reasons given at [35] to [40] above, if application for this relief had been made. The amendment to the Reply was unsupported by any evidence and was not made in accordance with the 2004 Rules, that is, with the consent of the father, or as permitted by Court order.
Rule 2.54 of the new Rules gives the Court a discretion to disallow an amendment. I am satisfied that in applying this rule the overarching purpose would have required the mother’s amendment to be disallowed. I am satisfied it would have been appropriate for the Amended Reply to be struck out, if summary dismissal was not ordered. However, I do not rest my decision on this conclusion. Neither party made any submissions about disallowing the amendment under the Rules.
It follows that no purpose is served by Orders 4, 5 and 6 made by Registrar Aitken on 29 July 2021. They will be discharged.
Furthermore, since paragraph 15 of the Amended Reply will be dismissed I consider it appropriate to strike out the balance of the Amended Reply, since it is identical to the original Reply, once paragraph 15 is excised. The Reply should stand as the operative pleading on the Court file, unless a further valid amendment is made.
Both parties sought costs against the other. Taking account of the matters in s 117(2A) of the Act, I am satisfied a departure from the position in s 117(1) is justified. The mother has been wholly unsuccessful and, as pointed out, the amendment to the Reply should not have been made. I will order the mother to pay the father’s costs as agreed or assessed.
For the foregoing reasons, I am satisfied the orders set forth at the commencement of these reasons should be made.
I certify that the preceding fifty-four (54) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Harper. Associate:
Dated: 15 October 2021
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