Panagi & Panagi

Case [2021] FedCFamC1F 135

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…

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AGLC
Panagi & Panagi [2021] FedCFamC1F 135
Case
[2021] FedCFamC1F 135
Decision Date

CaseChat Overview and Summary

The case of Panagi & Panagi involved a dispute between the father and mother regarding child support and departure orders. The father filed an application for summary dismissal of the mother's claim by way of an Amended Reply, seeking child support departure orders under the Child Support (Assessment) Act 1989. The court was required to decide whether the principles applicable to summary dismissal were correctly applied in this case, particularly in light of the lack of evidence in support of the mother's Amended Reply and whether the orders would be just and equitable or otherwise proper.

The court found that the mother's Amended Reply did not provide sufficient evidence to support her claim for child support departure orders. The mother was unable to establish any reasonable prospect of success for her application, and there was an arguable case to disallow the amendment to the Reply due to non-compliance with the Family Law Rules 2004. The court concluded that the father had a reasonable prospect of successfully defending the mother's claim, and the summary dismissal was granted.

The court's decision was based on the principles of reasonableness in assessing the prospects of a claim, as outlined in section 46 of the Federal Circuit and Family Court of Australia Act 2021 (Cth). The court determined that the mother's Amended Reply did not establish a "real" prospect of success, and the expression "no reasonable prospects of success" applied to a case in which the pleadings disclosed "no reasonable cause of action and their deficiency is incurable."

The court made several orders, including dismissing the mother's Amended Reply and striking it out, discharging the Registrar's orders made on 29 July 2021, dismissing the Application in a Case filed on 19 August 2021, and ordering the mother to pay the father's costs. The form of the order is subject to the entry in the Court's records, and the Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors or to record a variation to the order.

Orders

Orders of the court

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.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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