Vail and Vail (No 4)

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.