Phu & Chan
[2015] FCCA 275
•12 February 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| PHU & CHAN | [2015] FCCA 275 |
| Catchwords: FAMILY LAW – Contravention of parenting orders – applications for a finding that a person has contravened an order affecting children are child-related proceedings under Family Law Act 1975 (Cth) s.69ZM. PRACTICE AND PROCEDURE – Application – contravention – where application was served at respondent’s address for service – whether application required to be served by hand – held good service. COSTS – Security for costs – no order for security for costs. |
| Legislation: Family Law Act 1975 (Cth), ss.69ZM, 69ZT, 69ZV, 70NAC Federal Circuit Court of Australia 1999 (Cth), s.17A |
| Cases cited: Chan & Phu [2013] FCCA 556 Gitane & Velacruz [2007] FamCA 183; (2007) FLC 93-309 Lindon v Commonwealth (No.2) [1996] HCA 14; (1996) 136 ALR 251; 70 ALJR 541 Vijayakumar v Qantas Airways [2009] FMCA 736 |
| Applicant: | MS PHU |
| Respondent: | MR CHAN |
| File Number: | SYC 1714 of 2010 |
| Judgment of: | Judge Scarlett |
| Hearing date: | 4 February 2015 |
| Date of Last Submission: | 4 February 2015 |
| Delivered at: | Sydney |
| Delivered on: | 12 February 2015 |
REPRESENTATION
| Applicant: | In person |
| Solicitor for the Respondent: | Mr Tiyce |
| Solicitors for the Respondent: | Tiyce Lawyers |
ORDERS
The Application-Contravention filed on 11 July 2014 is discontinued.
Counts 3, 4, 5, 8, 9 and 10 of the Application-Contravention filed on 21 October 2014 are dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Phu & Chan is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYC 1714 of 2010
| MS PHU |
Applicant
And
| MR CHAN |
Respondent
REASONS FOR JUDGMENT
Application
This is an Application by the mother of the parties’ daughter [X], who is shortly about to reach the age of 14 years, for findings that the father has contravened various Orders made on 18 June 2013 after an interim parenting hearing (Chan & Phu[1]). There are ten separate counts, alleging various contraventions of 12 separate orders on various dates.
[1] [2013] FCCA 556
The Application is supported by an affidavit sworn on 20 October 2014.
The father seeks that the Application should be summarily dismissed. In the alternative, he seeks orders that:
a)the mother should provide the sum of $20,000.00 by way of security for costs; and
b)the hearing of the Application should be stayed pending the payment of the amount of security for costs.
Earlier Application
The mother filed an earlier Application on 11 July 2014 seeking that the father should be dealt with for contravention of the Orders. The mother subsequently filed a further Application on 21 October 2014. Although the later Application was not described as an Amended Application, the mother told the Court that it was intended to supersede the earlier Application.
Consequently, the Application filed on 11 July 2014 will be discontinued.
Allegations
The allegations contained in the current Application consist of ten counts.
Count 1 claims that the father contravened Order 5(a) made on 18 June 2013 on eleven separate occasions between 14 February and 7 July 2014 by deliberately denying the child a total of 33 nights of weekend access to the mother and actively preventing the child from seeing her.
Order 5(a) states:
The child [X] is to spend time with the Mother as follows:
a) Each alternate weekend during the school term commencing on the first weekend after the commencement of the third school term in 2013;
Count 2 claims that the father contravened Orders 5(b) and 5(c) on three separate occasions, being the Term 1, Term 2 and Term 3 school holidays in 2014, although it should be noted that the allegation in respect of the Term 3 school holidays is framed as an attempt not to allow the child to see the mother.
Orders 5(b) and 5(c) state:
b) During the Autumn, Winter and Spring school holiday periods for one half of each such period and the Mother’s time is to commence by the collection of [X] from school on the Friday, or from the Father’s residence at 6:00 pm if [X] is not at school, of the weekend that [X] would have spent with her mother under order (5)(a) above had there not been school holidays;
c) Where any mid-term school holiday period extends for three (3) weeks, changeover will take place at 6:00 pm on the Wednesday of the middle week at the Father’s residence;
Count 3 claims that the father contravened Order 3 in that:
States that father has responsibility for “major long-term issues” concerning [X]. He had no right to withhold [X]’s weekend and school holiday access to myself but has continually done this. Withholding of weekend access ended only after I file(d) the contravention application, demonstrating that he never thought I would address with the courts.
Order 3 states:
The Applicant Father is to have sole parental responsibility for making decisions about major long-term issues concerning the care, welfare and development of the child [X] born [omitted] 2001.
Count 4 claims that the father contravened Orders 25 and 28 by attempting to withhold the child to travel to meet the mother in Singapore and forced the mother to sign an undertaking twice that the child would be returned to Sydney. The mother also claims that the father prevented the child from scuba diving whilst on holidays in Vietnam “otherwise the father was going to withhold [X] from travelling with me”.
Order 25 states:
Either party is at liberty to remove [X] from the Commonwealth of Australia for the purpose of an overseas holiday at times that the child is in that party’s care PROVIDED THAT both parties are restrained by injunction from taking [X] to any country about which the Department of Foreign Affairs and Trade has issues a travel advice on the Smart Traveller website in one of the following categories:
a) Reconsider your need to travel; or
b) Do not travel.
Order 28 states:
In the event that either of the parties removes [X] from the Commonwealth of Australia for the purpose of a holiday that party must ensure that the other party is provided with an itinerary that details:
a) Flight numbers including times and dates and full details of the return flight;
b) Identity of the carrier; and
c) An address and a contact telephone number for the period when the child is out of Australia.
Count 5 refers to an anticipated contravention of the Order 6 that relates to the Christmas/January school holidays from 4 December 2014 to 28 January 2015. The mother states:
This is anticipated contravention based on email discussions. Father has already confirmed that [X] will be unavailable to see me during my set period as specified and initially refused to negotiate make-up time, and has attempted to force his determination of make-up time on me.
Count 6 claims a contravention of Order 7, which relates to Mother’s Day. The mother states:
[X]’s father did everything he could to prevent [X] seeing me on Mother’s Day. I pushed very hard to make this access happen, and this should never have been necessary. He also prevented me from attending a school Mother’s Day function with [X], even though he had ample notice on my intention to attend. When his attempt to formalise this denial with Ms Webber[2]backfired, he still did all he could to prevent this access and frustrate all my efforts in making this happen. I saw [X] only from the Sunday morning to the Monday morning, and that’s only because I forced it.
[2] Ms Webber is the Independent Children’s Lawyer
Order 7 states:
Notwithstanding the effect of these Orders [X] is to spend time with her mother each Mother’s Day commencing at 6:00 pm on the Saturday evening immediately prior to Mother’s Day and concluding at the commencement of school on the Monday morning, with the Mother to collect [X] from the Father’s residence at the commencement of this period.
Count 7 claims a contravention of Order 11, relating to the child’s birthday. The mother alleges that the father did not allow [X] to spend any time with her on the child’s birthday, noting that this was meant to be her full weekend with the child.
Order 11 provides:
In the event that [X]’s birthday falls on a weekend when she is in her mother’s care according to these Orders then [X] will spend time with her father from 9:00 am until 12 noon and for this purpose the Mother must deliver [X] to the Father at the commencement of that period and collect her from the Father’s residence at the conclusion of that time.
Count 8 claims a contravention of Order 18, which relates to the provision of information from the school. She alleges that the father confirmed that he had asked the school not to communicate anything with her.
Order 18 provides:
Each parent is at liberty to request the provision of any documents normally provided to parents direct from [X]’s school including but not limited to correspondence, school photographs and school reports.
Count 9 claims contraventions of Orders 19 and 20, which relate to the provision of a mobile telephone to the child for the purpose of communicating with each parent. The mother alleges that the father took the child’s telephone away from her to prevent her from speaking with her mother.
Orders 19 and 20 state:
19. The Father is to provide [X] with a mobile telephone for her personal use upon which the parents shall be at liberty to contact the child at any reasonable time whilst she is in the care of the other parent.
20. Each parent must do all things necessary to ensure that [X] can communicate with the other parent in accordance with her wishes including by ensuring that her mobile telephone is charged and has a credit balance.
Count 10 claims a contravention of Order 24, concerning the mother’s birthday. The mother alleges that on [date omitted] 2014:
I don’t know why this was omitted from the orders in the first place. It is my birthday on [date omitted] and I would like [X] to spend time with me. This was always a part of past court orders. [X]’s father had previously attempted to prevent [X] from seeing me on my birthday, and it is pointless to negotiate with him over this as his response will be obvious. I would like [X] to spend time with me on my birthday starting immediately.
Curiously, the mother claims both in her Application and in her affidavit in support of the Application that the matter of her birthday was omitted from the Orders of 18 June 2013. That is obviously not the case, as Order 24 covers the parents’ birthdays:
24. [X] is to spend time with each parent on the parent’s birthday where the birthday falls on a weekend when they are not with [X] from 10:00 am until 10:00 am the following day however in the event that the parent’s birthday falls on a Sunday then the parent who has the child in his or her care will spend time with the child until the commencement of school on the Monday.
The Application for Summary Dismissal
The father seeks summary dismissal of the contravention application. The father originally sought dismissal of the earlier, now discontinued, Application, but by the time the matter came to court the mother had filed her fresh Application. Counsel for the father had prepared a written submission addressing the earlier Application but indicated that the written submission applied equally to the current Application.
The bases of the application for summary dismissal are that:
a)The Application is flawed in that it was not served personally in accordance with the Rules, but was served on the father’s solicitor; and
b)The entirety of the mother’s affidavit should be struck out, as it does not contain any evidence in admissible form, but rather is in the form of submissions.
The Court was referred to the decision of the Full Court of the Family Court in Gitane & Velacruz[3], where it was held at [25] that:
(1) that relief for summary dismissal is rarely and sparingly provided;
(2) that it is only available if it is clear on the face of the documents of the person asserting a cause of action that there is no reasonable cause of action or that it is a frivolous or vexatious one;
(3) that it is not enough to attain summary dismissal to show that it is a weak case;
(4) that there is a defect in the pleading and it appears that a party, the Court will allow the party to reframe its pleading; and
(5) that one only summarily dismisses if it is clear that the case is doomed to fail.
[3] [2007] FamCA 183; (2007) FLC 93-309
Summary Dismissal
The Court’s power of summary dismissal of an Application comes from s.17A of the Federal Circuit Court of Australia Act 1999. The relevant subsections are subsections (2) and (3), which provide:
(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.
Rule 13.10 sets out the Court’s power of summary dismissal:
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.
It appears to me, with respect, that the decision in Gitane & Velacruz[4] should now be read with some caution, as it did not apply to a proceeding before this Court and, consequently, rule 17A of the Act did not apply.
[4] supra
What an application for summary dismissal is required to demonstrate is not that the substantive application is “doomed to fail” but that the party prosecuting the proceeding or claim has no reasonable prospect of successfully prosecuting the proceeding or claim for relief (see Vijayakumar v Qantas Airways[5]).
[5] [2009] FMCA 736
In contravention proceedings, an application may be summarily dismissed if, on the face of the documents, it is clear that:
a)even if an allegation is made out it not would constitute a contravention of an order; or
b)the evidence in support of the application, taken at its highest, would not be sufficient to establish the allegation.
Consideration
The father submits that the mother’s Application should be summarily dismissed in its entirety because:
a)it was not served personally; and
b)the affidavit in support contains no admissible evidence in support of the Application.
There is no issue as to the fact that the Application, and the earlier Application, were not served personally on the father but on the father’s solicitor by post. However, in the circumstances of this case, this is not a fatal flaw, as there are ongoing proceedings between the parties.
Rule 6.06 relevantly provides:
(1) Service by hand is required for an application starting a proceeding or a subpoena requiring attendance of a person.
(2) However, service by hand is not required if:
(a) there are current proceedings for which there is a notice of address for service for the person to be served;
As there are current proceedings, being a substantive application for parenting orders by the father, service of this Application on his solicitor, who has provided an address for service, means that the Application has been served in accordance with the Rules.
The next matter for consideration is the affidavit in support. The Application is supported by an affidavit of the mother sworn on 20 October 2014.
The affidavit sets out the remedies sought by the mother, being:
1. Father to be penalised by being imprisoned for four weeks
2. Father to pay a fine to myself of $50,000
3. Make-up time at my discretion
4. Amending court orders to 50/50 access commencing immediately
5. Father to pay myself $5000 for every future attempt at unilaterally changing court orders
6. Father to pay for Padi diving course, tickets to see The Lion King and for forcing me to sign undertakings while I was overseas.
7. Amend Christmas holidays 2015 so I can travel with [X]
8. That I have sole parental custody
9. That I hold [X]’s passport.
Whilst some of the proposed orders are parenting orders and other seek compensation, the Court does not have the power to impose fines to be paid to a party other than the Commonwealth let alone to impose fines on a prospective basis.
The affidavit then goes on to deal with the evidence upon which the mother seeks to rely in support of each count. It will be recalled that the father submits that the entire affidavit is in the form of a submission.
In respect of Count 1, the mother annexes a large number of printed out emails. Whilst much of the text is not in proper form and is in the nature of a submission, it is clear that the reference to various emails can be seen that some of the email conversation goes towards arrangements for weekend time with the mother.
The reference to various emails and what the mother says that the child said to her go some way towards admissible evidence of the contraventions alleged in Count 2. Section 69ZV of the Family Law Act 1975 (Commonwealth) provides at subsection(1) and (2) that:
(1) This section applies if the court applies the law against hearsay under subsection 69ZT(2) to child-related proceedings.
(2) Evidence of a representation made by a child about a matter that is relevant to the welfare of the child or another child, which would not otherwise be admissible as evidence because of the law against hearsay, is not inadmissible in the proceedings solely because of the law against hearsay.
Section 69ZM provides that proceedings that are wholly under Part VII of the Act are child-related proceedings. Applications for a finding that a person has contravened an order under the Act affecting children are proceedings wholly within Part VII.
It would appear that there is some admissible evidence that goes towards the allegations in Count 2.
The evidence in support of Count 3, alleging a contravention of Order 3 is contained in the mother’s affidavit on page 6. It is entirely in the form of a submission and is inadmissible.
Count 3 will be dismissed.
The evidence in support of Count 4, going to an allegation of a contravention of Orders 25 and 28 consists of bald assertions and submissions. The mother’s complaint related to the father’s alleged refusal to allow the child to undertake scuba diving in Vietnam, which does not appear to be a contravention of either order, even if it were made out.
The mother complained that:
[Mr Chan] would not allow [X] to travel with me overseas unless I provided full details of the entire trip even though the court orders do not require this, and I had to twice unnecessarily complete an undertaking that [X] would be returned to Australia and that she would not go scuba diving.
Even if that assertion were to be made out, it does not appear to constitute a contravention of Order 28.
Count 4 will be dismissed.
The mother’s affidavit in support of Count 5, relating to the Christmas holidays in December 2014 and January 2015, refers to an anticipated contravention of orders that was yet to occur when the mother filed her Application on 21 October 2014. There is no provision to make a finding in advance of an order being contravened.
Count 5 is therefore incompetent, meaning it is without jurisdiction, and must be dismissed.
Count 6 relates to Mother’s Day, and contains an allegation that the mother’s time did not commence until the Sunday morning, even though the time should have commenced on the Saturday night. To that extent, there appears to be evidence upon which a finding of a contravention could be made.
There appears to be evidence upon which a finding could be made of a contravention of the order relating to the child’s birthday in Count 7.
Count 8 refers to a claim that the father contravened Order 18, which gives the right to each party to obtain documents from the child’s school. The mother claims in her affidavit that email 66 annexed to her affidavit shows that the father confirmed that he had told the school not to give her any information.
On reading of the email, it says exactly the opposite:
I have given permission for the school to contact you and copy you in on all correspondence as you requested from them early in the year. If this is not happening please let me know and I will raise it with [omitted].
That evidence cannot support a finding of a contravention of Order 18. Count 8 will be dismissed.
Count 9 asserts that the father took the child’s telephone away from her so that could not communicate with her mother as provided by Orders 19 and 20. The mother’s affidavit contains no more than a bald assertion that this has occurred and cannot amount to evidence sufficient to base a finding of a contravention of the Orders
Count 9 will be dismissed.
Count 10 is puzzling, in that the mother asserts that the current Court orders do not provide for her to spend time with the child on her birthday. Order 24 clearly does provide that the child is to spend time with each parent on the parent’s birthday.
Count 10 will be dismissed.
Conclusions
It can be seen that the father’s application for summary dismissal of the mother’s Contravention Application in toto has not been successful, as the Court has found that service was effected in accordance with the Rules and parts of the affidavit provide evidence in support of some of the mother’s claims.
It may well be argued that the weight to be given to some of the mother’s evidence would not be great, but it has been held that even a weak case deserves its time in court (Lindon v Commonwealth (No.2)[6]).
[6] [1996] HCA 14; (1996) 136 ALR 251; 70 ALJR 541
However, the Court has power under s.17A of the Federal Circuit Court Act 1999 to dismiss any part of a proceeding if the applicant has no reasonable prospect of successfully prosecuting that part of the proceeding. As I am satisfied that the mother has no reasonable prospect of successfully prosecuting Counts 3, 4, 5, 8, 9 and 10 of her application and they will be dismissed.
The correct procedure is for the Court to ask the father, through his solicitor, whether he wishes to admit or deny the allegations in Counts 1, 2, 6 and 7 of the Application.
Security for Costs
I have considered the father’s application for security for costs in the sum of $20,000.00. Noting the fact that the mother has not been entirely unsuccessful in this matter to date, I am reluctant to make an order for security for costs, which may have the effect of depriving the mother of the opportunity of having her claims decided by the Court.
I certify that the preceding sixty-eight (68) paragraphs are a true copy of the reasons for judgment of Judge Scarlett
Associate:
Date: 12 February 2015
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