Panshin and Farmer - [2013] FMCAfam 302

FEDERAL MAGISTRATES COURT OF AUSTRALIA

PANSHIN & FARMER

[2013] FMCAfam 302

FAMILY LAW – Contravention application – summarily dismissed.

Family Law Act 1975, ss.90SF, 118
Federal Magistrates Court Rules 2001

Farmer & Panshin (2013) FMCAfam 188
Johnson & Haddocks & Anor (2011) FMCAfam 880
Panshin & Farmer (2013) FMCAfam 96

Applicant:

MS PANSHIN

Respondent:

MS FARMER

File Number:

SYC 2252 of 2011

Judgment of:

Altobelli FM

Hearing date:

27 March 2013

Date of Last Submission:

27 March 2013

Delivered at:

Sydney

Delivered on:

27 March 2013

REPRESENTATION

The Applicant in person

Solicitors for the Respondent:

Stidwill Solicitors

ORDERS

The Applicant’s Contravention Application filed 4 February 2013 be dismissed.
The Applicant pay the Respondent’s costs fixed in the sum of $2,000 such sum to be charged against the amount ordered to be retained pursuant to order 3 made 14 March 2013.

IT IS NOTED that publication of this judgment under the pseudonym Panshin & Farmer is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYC 2252 of 2011

MS PANSHIN

Applicant

And

MS FARMER

Respondent

REASONS FOR JUDGMENT

EX TEMPORE

On 4 February 2013, the applicant, Ms Panshin, filed a Contravention Application in this court. Doing the best I can, it would seem the only supporting evidence was a Notice of Child Abuse. That was filed on that day. The alleged contravention relates to an order that I made on 22 January 2013. The order and the reasons for judgment are published as (2013) FMCAfam 96.
The order in question was that the respondent do all things necessary to pay to the applicant and to herself the sum of $20,000 each from the sale proceeds of the property, being Property C, with the characterisation of this payment to be determined at the final hearing.
In effect, the Contravention Application contends that this did not take place in accordance with my orders and, specifically, that it did not take place “forthwith”. Doing the best I can to understand the Contravention Application, it seems as if the applicant suffered, or claims to have suffered, some inconvenience and distress as a result of this.
The reasons for judgment make it clear that when the matter was dealt with on 22 January 2013, neither the applicant nor the Court knew when settlement of the sale of the property at [C] would take place. Indeed, it was not even known whether the settlement had, in fact, already taken place. The orders made provided that forthwith the sum of $20,000 was to be paid from the sale proceeds of the property.
The evidence before me and, specifically, exhibit R1, and I think this is mirrored in some of the earlier emails that are exhibited, established that on 1 February 2013, the date of settlement, the sum of $20,000 was deposited by bank cheque into the applicant’s bank account.
The respondent seeks summary dismissal today. The basis of summary dismissal is said to be s.118 of the Family Law Act which provides for dismissal in the event of frivolous or vexatious proceedings. In this regard, the Federal Magistrates Court’s Rules provide equivalent provisions. The applicant appeared in person this morning, but at one stage of the proceedings became distressed and had to leave the court room, and she has not returned.
In order to understand the reasons for judgment that I give in this present application, one must have regard to the long history of this matter, and to the previous reasons for judgment which have been given, all of which have been summarised in the reasons for judgment I published, or delivered, on 7 March 2013, published as (2013) FMCAfam 188. I refer to the history of the matter because it is clear to the Court that the respondent in the substantive proceedings, and the applicant in the Contravention Application, has struggled at times to cope with these proceedings.
Indeed, the assessment of s.90SF contributions reflects the concerns that the Court held about the present applicant’s health. In many ways, those concerns have been demonstrated once again by the distress that was demonstrated by her this morning in court. This is not the first time that the applicant has become distressed, absented herself, but then returned to the proceedings. The reason why I provide this background is to explain why I have decided to proceed with the respondent’s application for summary dismissal in the absence of the applicant.
In effect, the respondent to the Contravention Application contends that the Contravention Application is doomed to fail on the evidence before the Court. The respondent contends that the basis of summary dismissal should be s.118, in that the proceedings are frivolous or vexatious. One thing that is patently clear on the evidence before the Court is that on the day of settlement the sum of $20,000 was paid into the applicant’s bank account and it would seem into an account that was nominated by her.
Exhibit R1, and some of the earlier emails, particularly exhibits R2 and R3, suggest that the applicant wanted the $20,000 paid to her in cash. Given that the money was coming from the sale proceeds of a property, I do not regard it as a reasonable interpretation of the order that I made, that she should be entitled to receive that money in cash. Nor do I regard it as a reasonable interpretation of my orders that somehow it could be construed as an obligation on the respondent to pay the sum of $20,000 to the applicant from the deposit that may have been held pending settlement of the sale. All the evidence demonstrates quite conclusively that the respondent did, in fact, comply with the order that I made on 22 January 2013.
In those circumstances, what is to become of the Contravention Application? The Contravention Application filed 4 February 2013, must be summarily dismissed and the Notice of Abuse, also filed on that date, must be struck out.
However, the Court chooses not to found its order on s.118 of the Family Law Act. The Court prefers to summarily dismiss the proceedings on the basis of Federal Magistrates Court Rules r.13.10(a), and that is, that there was no reasonable prospect of successfully prosecuting the proceeding or claim. I’m satisfied that this is established, and that, for example, the evidence before me crosses what I acknowledge is a high threshold for summary dismissal pursuant to the Federal Magistrates Court Rules.
Federal Magistrate Scarlett in Johnson & Haddocks & Anor (2011) FMCAfam 880 refers to the various High Court and other authorities about summary dismissal. In particular, I refer to paragraphs 35 to 38 inclusive of his Honour’s reasons for judgment, and paragraphs 44 and 45. Borrowing from some of the words his Honour uses, and quotes:
This is not a case where there is evidence of having any ambivalent character which might suggest that there are reasonable prospects.
This is not a case where the Contravention Application might have been amended on the specific counts before the Court, or where further evidence could have been adduced, which might have pointed to a different possible outcome. Even adopting an extremely cautious and conservative approach to summary dismissal, the Contravention Application was doomed to fail.
The Court chooses not to proceed under s.118 because, as mentioned earlier in my reasons, there is a real basis to be concerned about the applicant’s health, and the various emails and other documents that have been tendered before me this afternoon are as consistent with a woman who is struggling with her psychological health, as it is consistent with someone who is engaging in frivolous or vexatious conduct. Hence, the Court decides not to proceed on that basis.
The Contravention Application being dismissed, the respondent seeks costs calculated in accordance with the Federal Magistrates Court Rules. The sum of $2,000 is sought, which is, I would have thought, in all the circumstances, quite conservative. The applicant was entirely unsuccessful in her application. The respondent was entirely successful. The application was found to have no merit. The amount sought is, in fact, a modest application of Schedule 1 to the Federal Magistrates Court Rules.
The sum claimed is probably hundreds of dollars less than what would have been awarded in circumstances where the costs were calculated under Schedule 1 of the Federal Magistrates Court Rules.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Altobelli FM.

Date: 4 April 2013