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What is summary dismissal in family law?

By February 14, 2022February 23rd, 2024No Comments

Sometimes, a court proceeding may be dismissed, if it is found that to proceed with it would essentially be a huge waste of everyone’s time. This is what is known as a “summary dismissal” of a court proceeding. Family law legislation sets out a variety of circumstances in which a court can dismiss a proceeding. But although applying to have your family law matter summarily dismissed is a remedy available to all litigants, it can actually be quite a difficult thing to convince the court to summarily dismiss the matter. Let’s take a look at summary dismissals in family law.

A recent matter in the family courts sheds light on the subject of summary dismissal of court proceedings and reveals just how hard the legal test is to satisfy. Summary dismissal relief is “rarely and sparingly provided”, because “it is a serious matter to deprive a person of access to the courts of law”, as the judge in the matter of Daiber & Najaran (pseudonyms) noted. In this matter, the mother had applied for summary dismissal of the parenting proceedings the father had initiated. Despite the father being in immigration detention and also awaiting a trial on serious criminal charges, he had applied for the children to live with him. On the face of it, you might think “well that’s a slam dunk for dismissal, how could the children ever be sent to live with the father in these circumstances?” However, the mother’s application was dismissed.

And the reason is that in practice, the legal test for a court finding that there is “no reasonable prospect of success” is quite hard to satisfy. It’s not enough for the court to form the opinion that a case “appears weak and such that it is unlikely to succeed”. As the judge in this matter explained:

“Even a weak case is entitled to the time of a court. Experience teaches that the concentration of attention, elaborated evidence and argument and extended time for reflection will sometimes turn an apparently unpromising cause into a successful judgment.”

The judge noted that if the mother’s allegations in the criminal matter (regarding family violence and sexual assaults perpetrated by the father) were ultimately proven, this would mean the father’s case faced “real and significant difficulties”. But it was pointed out that “challenging circumstances” do not automatically equate to “no reasonable prospect of successfully prosecuting the proceeding”.

Ultimately, it needs to be “clear, on the face of the opponent’s documents, that the opponent lacks a reasonable cause of action” or is advancing a claim that is clearly frivolous or vexatious.

The father’s argument was that if he was acquitted of the criminal charges, his protection visa would operate until all his avenues for appeal on his asylum claim were exhausted. And the onus was on the mother to convince the judge that this was not true. As she could not, the judge was unable to find it was a matter of fact that it was likely the father would be deported and noted it was impossible for the court to predict when that might occur.

In this case, therefore, the judge said he was not able to “prejudge” the father’s various legal cases “by ruling that on his affidavits it lacks a reasonable cause of action”.

The courts will do what they can to ensure justice is done. This means, for example, even if a party hasn’t put their case into a proper form, if they may have a reasonable cause of action, the court “will ordinarily allow that party to reframe its pleading”. It’s all about the guiding principle of the courts doing what is just. And in proceedings that are successfully found to be doomed to fail, the courts will dismiss the action “to protect the defendant from being further troubled, to save the plaintiff from further costs and disappointment and to relieve the court of the burden of further wasted time which could be devoted to the determination of claims which have legal merit.”

For assistance with a family law matter, please contact Canberra family lawyer Cristina Huesch or one of our other experienced solicitors here at Alliance Family Law on (02) 6223 2400.

Please note our blogs are not legal advice. For information on how to obtain the correct legal advice, please contact Alliance Family Law.


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