Vail and Vail (No 4)

Case [2021] FamCA 106


FAMILY COURT OF AUSTRALIA

VAIL & VAIL (NO. 4) [2021] FamCA 106
FAMILY LAW – PROPERTY – contempt application – whether contempt application properly pleaded – whether the contempt application be struck out, or summarily dismissed, for want of particularity – consideration of Court’s power to strike out applications –consideration of whether leave be granted to amend contempt application – indemnity costs sought and refused – costs reserved – leave granted to amended application and request further or better particulars.
Family Law Act 1975 (Cth) s 38(2)
Family Law Rules 2004 rr 10.12, 10.13, 10.14
High Court Rules 2004 r 27.09

Best & Best [2016] FamCAFC 190

Bigg v Suzi [1998] FamCA 14; (1998) FLC 92-799
Chen & Chen and Ors (No. 3) [2020] FamCA 744
Coward v Stapleton (1953) 90 CLR 573; [1953] HCA 48
Cluny & Skinner [2017] FamCA 255
Dey v Victorian Railways Commissioners (1949) 78 CLR 62; [1949] HCA 1

Director of Public Prosecutions for Western Australia v Network Ten (Perth) Pty Ltd [2007] WASC 166
Doisy & Wilmot Doisy (2009) 40 Fam LR 655; [2009] FamCAFC 14
Hammond v Aboudi [2005] WASCA 204

Industrial Registrar of New South Wales v Uniting Church in Australia Property Trust (NSW) [2003] NSWIRComm 387
Industrial Registrar of New South Wales v Uniting Church in Australia Property Trust (NSW) [2003] NSWIRComm 388
John Holland Pty Ltd v CFMEU [2006] WASC 106
Vail & Vail (No. 2) [2020] FamCA 1070
Lindon v The Commonwealth (No. 2) (1996) 136 ALR 251; [1996] HCA 14
Medlow & Medlow (2017) 57 Fam LR 179; [2017] FamCAFC 159
Pelerman & Pelerman (2000) FLC 93-037; [2000] FamCA 881
Stradford & Stradford (2019) 59 Fam LR 194; [2019] FamCAFC 25
Tate & Tate (2002) FLC 93-107; [2002] FamCA 356

APPLICANT: Ms Vail
RESPONDENT: Mr Vail
FILE NUMBER: SYC 5604 of 2020
DATE DELIVERED: 10 March 2021
PLACE DELIVERED: Sydney via videoconference
PLACE HEARD: Wollongong
JUDGMENT OF: Altobelli J
HEARING DATE: 1 & 15 December 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Batey and Mr Wong on 1 December 2020
Ms Gillies SC and Mr Wong on 15 December 2020
SOLICITOR FOR THE APPLICANT: Finn Roache Lawyers
COUNSEL FOR THE RESPONDENT: Mr Moses SC and Mr Wong
SOLICITOR FOR THE RESPONDENT: Barkus Doolan

Orders

  1. The Applicant have leave to file an amended contempt application within 14 days of the date of this order.

  2. The Respondent may request further and better particulars within 14 days thereafter, and such particulars must be provided 14 days after the making of such request.

  3. The matter be listed for Mention before me with respect to the Contempt Application only on 23 April 2021 at 9am.

  4. Each parties’ costs be reserved.

IT IS NOTED THAT:

A.The purpose of the Mention is to assess the readiness of the Contempt Application to be heard, and once the Court is satisfied of same, it will be listed before Altobelli J for hearing.

B.The substantive issues in the matter are otherwise to be case…

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AGLC
Vail and Vail (No 4) [2021] FamCA 106
Case
[2021] FamCA 106
Decision Date

CaseChat Overview and Summary

The Family Court of Australia considered an application by the Respondent husband to strike out the Applicant wife’s Contempt Application. The wife's application alleged breaches of orders made on 9 September 2020, specifically relating to spousal maintenance, the drawing of funds from a company, failure to provide financial details, and the use of company accounts and credit cards. The husband contended that the contempt charges were ambiguous, vague, and contained multiple breaches within a single charge, making it impossible for him to defend them.

The legal issues before the Court were whether the Contempt Application was properly pleaded and whether it should be struck out or summarily dismissed for want of particularity. The Court also considered its power to strike out applications and whether leave should be granted to amend the application. The husband sought indemnity costs, which were refused, and costs were reserved.

The Court noted that the Family Law Rules 2004 do not provide for the "striking out" of applications since pleadings were abolished. It interpreted the husband's oral application as one for summary dismissal, likely on the basis that the application was frivolous, vexatious, an abuse of process, or had no reasonable likelihood of success, invoking Rules 10.12 to 10.14. However, a difficulty arose as Rule 10.12 applies "after a response has been filed," and no formal response had been filed. The Court considered that the husband's oral application could be treated as a response for the purposes of Rule 10.12, and that Rule 10.13 might also apply. Any ambiguity in the Court's powers was potentially resolved by section 38(2) of the Family Law Act 1975, which incorporates the High Court Rules 2004, specifically Rule 27.09 concerning summary disposition.

The Court granted the Applicant wife leave to file an amended contempt application within 14 days. The Respondent husband was given 14 days thereafter to request further and better particulars, which were to be provided within 14 days of such request. The matter was listed for a mention on 23 April 2021 to assess the readiness of the Contempt Application for hearing, with substantive issues to be case managed by the docket Registrar. Each party's costs were reserved.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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