Generally, the Court cannot dismiss a party’s application without giving the party an opportunity for the application to be properly heard. Even if an application appears weak and unlikely to be unsuccessful, the Court is reluctant to deny parties an opportunity to prosecute their case and seek a determination of their application by the Court.
However, the Court may summarily dismiss all or part of the application (without the need for a full hearing) if:
· The applicant has no reasonable prospect of successfully prosecuting (or defending) the proceeding; or
· The proceeding is frivolous or vexatious; or
· The proceeding is an abuse of process of the court.
The application does not need to be ‘hopeless’ or ‘bound to fail’ to be summarily dismissed by the Court. Nonetheless, the Court must proceed cautiously and should not lightly use the power to summarily dismiss an application.
In considering whether or not to dismiss the application, the Court must only consider the material put forward by the party seeking to bring the application and consider it ‘at its highest’. This does not mean, however, that the party can mislead the Court and make unfounded allegations in their material to satisfy the Court that their application should proceed: the Court does not have to take the party’s evidence at its highest if their version is ‘inherently incredible or unreliable.’
In Ritter & Ritter and Anor (2020) FamCAFC 86, the husband sought to re-open the family law proceedings because he said his consent to the orders was obtained through deception. The Full Court of the Family Court found that instead of considering the husband’s case ‘at its highest’, the trial judge had been distracted by addressing what orders might ultimately be made by the Court. The Full Court also said that given the seriousness of the husband’s allegations, ‘very little evidence’ was needed to satisfy the Court that the husband should have an opportunity to pursue his application.
If a Court summarily dismisses the application, the Court can make an order for costs if it considers appropriate, such as that the applicant pay the respondents costs of the proceedings.
The respondent to the application can apply to the Court seeking an Order that the application be dismissed, or the Court can dismiss the application on its own initiative.
The Court can also, on its own initiative, dismiss all or part of the proceedings if a party has failed to progress the proceedings for a period of six months. The Court must provide the parties with 14 days’ notice if it intends to consider dismissing the proceedings and cannot do so if there is a future Court date, an interim application that has not yet been determined, or if a party satisfies the Court that the proceedings should not be dismissed.
In rare cases, the Court can also issue ‘summary judgment’, for example to make final orders about the issues in dispute.
If you would like advice in relation to your family law matter, contact our office on (02) 6225 7040 or by email on info@rmfamilylaw.com.au or get started now online to make an appointment with one of our experienced family lawyers.