Understanding Summary Dismissal and Summary Decrees in Family Law

Section 102QAB of the Family Law Act 1975 (Cth) (“the Act”) sets out the circumstances in which the Court may make a summary decree. It provides as follows:-

No reasonable prospect of successfully defending proceedings

(1) The court may make a decree for one party (the first party) against another in relation to the whole or any part of proceedings if:

(a) the first party is prosecuting the proceedings or that part of the proceedings; and

(b) the court is satisfied that the other party has no reasonable prospect of successfully defending the proceedings or that part of the proceedings.

No reasonable prospect of successfully prosecuting proceedings

(2) The court may make a decree for one party (the first party) against another in relation to the whole or any part of a proceedings if:

(a) the first party is defending the proceedings or that part of the proceedings; and

(b) the court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceedings or that part of the proceedings.

When there is no reasonable prospect of success

(3) For the purposes of this section, a defence or proceedings or part of proceedings need not be:

(a) hopeless; or

(b) bound to fail;

to have no reasonable prospect of success.

Section 102QAB  requires that the Court needs to be satisfied that a party “has no reasonable prospect of successfully” defending the proceedings (in the case of s 102QAB(1)) or prosecuting the proceedings (in the case of s 102QAB(2)).

In determining whether a proceeding has “no reasonable prospect”, it is not necessary to make a finding that a proceeding is “hopeless” or “bound to fail”.

In Lindon v Commonwealth of Australia (No 2) [1996] HCA 14; (1996) 136 ALR 251 at 255-256, (“Lindon”) Kirby J considered the approach to be taken in the determination of applications for summary relief, stating:-

1. It is a serious matter to deprive a person of access to the courts of law for it is there that the rule of law is upheld, including against government and other powerful interests. This is why relief, whether under O 26, r 18 or in the inherent jurisdiction of the court, is rarely and sparingly provided.
2. To secure such relief, the party seeking it must show that it is 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.
3. An opinion of the court that a case appears weak and such that it is unlikely to succeed is not, alone, sufficient to warrant summary termination. 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.
4. Summary relief of the kind provided for by O 26, r 18, for absence of a reasonable cause of action, is not a substitute for proceeding by way of demurrer. If there is a serious legal question to be determined, it should ordinarily be determined at a trial for the proof of facts may sometimes assist the judicial mind to understand and apply the law that is invoked and to do so in circumstances more conducive to deciding a real case involving actual litigants rather than one determined on imagined or assumed facts.
5. If, notwithstanding the defects of pleadings, it appears that a party may have a reasonable cause of action which it has failed to put in proper form, a court will ordinarily allow that party to reframe its pleading. A question has arisen as to whether O 26, r 18 applies to part only of a pleading. However, it is unnecessary in this case to consider that question because the Commonwealth's attack was upon the entirety of Mr Lindon's statement of claim.
6. The guiding principle is, as stated in O 26, r 18(2), doing what is just. If it is clear that proceedings within the concept of the pleading under scrutiny are doomed to fail, the court should 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.

88. In Ritter & Ritter and Anor [2020] FamCAFC 86; (2020) FLC 93-957 at [27], the Full Court adopted the statement of principle by Kirby J in Lindon above.

89. Those principles continue to have application in the determination under s 102QAB of the Act.
90.  In applying those principles, the Full Court observed in Curtain & Curtain [2022] FedCFamC1A 134 at [21] that in determining an application for summary dismissal “[t]he Court does not undertake a preliminary trial, nor is a detailed hearing of the case on its merits required.” The court in Trustee of the Bankrupt Estate of Nagarno & Talbert [2024] FedCFamC1F 19  reviewed the authorities as to the principles to be applied in the determination of an application for summary dismissal. In that matter, Berman J confirmed that in considering whether proceedings have “no reasonable prospect”, the Court is not required to make a finding that the proceedings are bound to fail.  

Section 102QAB(4) allows the court to dismiss all or part of proceedings at any stage if it is satisfied that the proceedings or the part is frivolous, vexatious or an abuse of process.

Section 102QAB(5) provides that proceedings or a part of proceedings are not frivolous, vexatious or an abuse or process merely because an application relating to the proceedings or the part is made and later withdrawn.

Section 102QAB(6) provides that if the court  dismisses all or part of proceedings, under this section, the court may make such order as to costs as the court considers just.

Section 102QAB(7) The court may take action under this section on its own initiative or on application by a party to the proceedings

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