SCVG & Estate of KLD (No 3)
[2021] FedCFamC1F 296
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
SCVG & ESTATE of KLD (No 3) [2021] FedCFamC1F 296
File number(s): SYC 4380 of 2008 Judgment of: GILL J Date of judgment: 13 December 2021 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Application – Dismissal – Non-compliance with various orders – Non-attendance at Conciliation Conferences – Non-payment of costs orders – Enforcement action not taken – Proximity to final hearing – Application dismissed. Legislation: Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 67, 69
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 1.04, 1.33, 10.26, 10.27
Federal Circuit and Family Court of Australia Family Law Case Management Central Practice Direction
Division: Division 1 First Instance Number of paragraphs: 15 Date of hearing: 7 December 2021 Place: Canberra Counsel for the Applicant: Ms Knight Solicitor for the Applicant: Macphillamy’s Solicitor for the First Respondent: Self-represented litigant Solicitor for the Second Respondent: No appearance ORDERS
SYC 4380 of 2008 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: THE ESTATE OF KLD
Applicant
AND: Mr SCVG
First Respondent
CHILD SUPPORT REGISTRAR
Second Respondent
ORDER MADE BY:
GILL J
DATE OF ORDER:
13 DECEMBER 2021
THE COURT ORDERS THAT:
1.The Application in a Case filed by the Estate on 24 November 2021 is dismissed.
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 pseudonym SCVG & KLD has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
GILL J:
This judgment concerns an Application in a Case filed by the Estate on 24 November 2021, supported by an affidavit of Mr Draper, a costs notice and associated costs orders, seeking the sole remedy that the substantive applications filed by Mr SCVG be dismissed. The application comes in the shadow of the upcoming final trial of those applications listed for 8–10 February 2022, and is reliant on non-compliance with various orders by Mr SCVG as the basis for the proposed dismissal.
Mr SCVG, without challenging the factual premise of non-compliance behind the application, resists it, relying upon his Response filed 1 December 2021, along with an accompanying affidavit, and referring to the litigation context. He does not dispute the power of the Court to dismiss for non-compliance, but says that remedy should not be granted in this instance, akin as it is to an application for summary dismissal.
The Estate relied upon a suite of provisions from the Federal Circuit and Family Court of Australia Act 2021 (Cth) (“the Act”), the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”) and the Federal Circuit and Family Court of Australia Family Law Case Management Central Practice Direction (“the Central Practice Direction”).
Specifically the Estate identified that s 67 of the Act sets out the overarching purpose of the practice and procedure provisions, including at s 67(1):
(1) The overarching purpose of the family law practice and procedure provisions is to facilitate the just resolution of disputes:
(a) according to law; and
(b) as quickly, inexpensively and efficiently as possible.
This provision is supported by the powers at s 69(4) of the Act, which includes a specific power to dismiss proceedings where there is a failure to comply with a direction.
Similarly, the Rules provide an overarching purpose in the same terms as s 67 of the Act,[1] with such purpose supported by powers at r 1.33 that include the ability to dismiss proceedings where there is non-compliance with a provision or procedural order, and rr 10.26 and 10.27 that provide for dismissal where a party is in default.
[1] Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 1.04.
The Central Practice Direction at Core Principle 5 emphasises the importance of dispute resolution.
It is against this background that the Estate identifies default by Mr SCVG in his failure to comply with directions regarding and to attend at Conciliation Conferences listed on 19 October 2021 and 9 November 2021. Judicial Registrar Tomasetti noted in relation to the 9 November 2021 Conciliation Conference that Mr SCVG had advised he would not attend as he did not consider it appropriate. Costs were awarded against him in favour of the Estate in respect of both of the Conciliation Conferences.
The Estate also identifies default on the part of Mr SCVG in relation to a significant number of costs orders in this court that have been made against him, in excess of $140,000. No application in respect of enforcement has yet been made in respect of those costs awards.
It may be seen that these matters form serious examples of non-compliance.
The Estate submits that particular weight should be assigned to the failures to participate in the Conciliation Conferences, particularly in the context of Principle 5 of the Central Practice Direction.
As noted above Mr SCVG does not dispute his non-compliance, but observes that he has made, in court, an open offer to resolve the proceedings. No response to that offer is apparent which detracts from the notion that Mr SCVG has taken no step to seek the resolution of the matter.
He further submits that the dismissal of the four causes of action for fraud, being matters of public importance insofar as they relate to the integrity of the administration of justice, would be disproportionate to the non-compliance.
Although the issues are not wholly parallel, in that the justification for dismissal here differs from a summary dismissal application, the effect of depriving a litigant of access to the court to argue their case is similar. Given the seriousness of such an outcome, the caution in resorting to dismissal for non-compliance ought to reflect a similar caution exercised in respect of summary dismissal.
It should not be thought, however, that in all cases this will present as a hard barrier to dismissal. However, here the proximity of the matter to trial (and hence the lateness of the application), coupled with the remedy of costs already given for the Conciliation Conferences, coupled with the ability of the Estate to take enforcement action in respect of the outstanding costs awards, tells sufficiently against the exercise of the discretion as to refuse such relief.
I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Gill. Associate:
Dated: 13 December 2021
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