VIC Family Law Court - Application to Have Response Struck Out?

[Malissla]

Hi Guys,

I wish to make an application to have a response to an application struck out and/or dismissed in the Family Law Court.

I filed an Initiating application to have all child access supervised 7 years ago, limited supervised access has taken place for 7 years due to the significant family violence perpetrated against us, the children and myself.

The children do not want contact and stopped attending 2 years ago. The respondent then applied for unsupervised access, his application was dismissed. He has now amended his response to my Initiating application whereby he is now seeking residence of the children. The reason he gives is my failure to comply with court orders - for which there is no evidence - it's a lie - and failure to facilitate a relationship between him and the children - which again is a lie, which is substantiated in my favour by a Sec11F report

Section11F report produced that states children to live with mother, father a risk to mother and children.

I am making an application to have his "response" seeking residence to be struck out.

Could anyone please specify the exact section of law I need to rely upon to have this response or entire matter struck out or dismissed?

 

[Rod]

On what grounds?

Application has no prospect of success?
Application is based on a lie (ie no contravention by yourself)?
Father is still a threat to the children?
Children don't want to live with father?
Other?

You said he had supervised access for 7 yrs, then kids didn't want to see him so you stopped access. He failed in another application to get unsupervised access. Unless the application for unsupervised access altered the original orders then he should still have had supervised access. If this is correct I suspect he has grounds for his application.

Let me know I have misunderstood your post.

 

[AllForHer]

You keep referring to the other parent as the respondent, which makes you the applicant, what orders did you file for? What’s he responding to?

He has a right to seek whatever orders he wants in response to whatever application you’ve sought, so let’s make sure he’s actually the respondent first.

 

[Malissla]

On what grounds?

Application has no prospect of success?
Application is based on a lie (ie no contravention by yourself)?
Father is still a threat to the children?
Children don't want to live with father?
Other?

You said he had supervised access for 7 yrs, then kids didn't want to see him so you stopped access. He failed in another application to get unsupervised access. Unless the application for unsupervised access altered the original orders then he should still have had supervised access. If this is correct I suspect he has grounds for his application.

Let me know I have misunderstood your post.

Rod, My Initiating Application sought that any access be supervised, he had very limited supervised access over 7 years but no access at all over the last two years, being as the children refuse to attend access there is no access to supervise so there is no need for me to pursue the matter.. although it has now been set down for trail...it gets complicated.

No, no contravention by myself. Contravention applications made by the Respondent but dismissed by the court.

Yes, father still a risk to the children and myself, confirmed by Child Protective Services and Sec11F report, both in my favour.

Children refuse to live, or have any type of contact with father, all 4 children's views are contained within Sec11F report and supported by report writer.

The very limited supervised access went on for five years - on and off - at access centres, for the last two years the kids said no we refuse to go, I got everyone involved, even the police who put it in writing that I cannot use force to make them attend, the Respondent took me to court for contravention of the access order BUT his application was struck out!

ok, so I have - so far - included the matter be struck out under The Family Law Act 1975 - Sec 102Q for an abuse of process, I'm ok with that... I have evidence to support that.


Here is where I am at:

"
1. I make this Affidavit in support of my Application in Case dated April 26 2018 to have the Respondents Amended Response dated August 31 2017 dismissed and or struck out of these proceedings under Family Law Act 1975 - Sect 102Q. Or for non-compliance of the Family Law Rules 2004 – Rule 9.01 (2) (a) & (b) insofar as the Respondent did not (a) state the facts in the application with which the respondent disagrees; (In relation to the Initiating Application) the Respondent in his Amended Response only disagreed with content within my Affidavit dated August 21 2017 and not that within my Initiating Application. And (b) state what the respondent believes the facts to be; (In relation to my Initiating Application) The Respondent in his Amended Response did not state what he believes the facts to be in response to my Initiating Application but in response to other matters.

2. For non-compliance of the Family Law Rules 2004 - Rule 9.02 that states: A respondent must not file an affidavit with a Response to Initiating Application unless: (a) responding to interim, procedural, ancillary or other incidental orders sought in the Initiating Application; (b) seeking interim, procedural, ancillary or other incidental orders in the Response.

The Respondent did not respond to interim, procedural, ancillary or other incidental orders sought in the Initiating Application; and was not seeking interim, procedural, ancillary or other incidental orders in the Response to my Initiating Application. Indeed the Amended Response and Affidavit dated August 21 2017 are as stated at paragraph 17 based upon my alleged non-compliance of Court Orders and alleged failure to facilitate a relationship between the children and the Respondent.

3. In addition, I make this Affidavit in support of my Application under Family Law Rules 2004 - Rule 10.12 for summary orders resulting from the Respondents Response that under 10.12 (c) is frivolous, vexatious or an abuse of process; and (d) there is no reasonable likelihood of success."


If you know of any other law I can depend upon I would be grateful.

Kind regards

 

[Rod]

Sec 102Q is only a definition section. Look at s 102QB.

r 9.02 - likely court will say to father fix your response, not throw out his response.

r 10.12 - Looks appropriate. But you will have a high hurdle to jump. Courts do not like to bar people from having their day in court. They will likely need very strong evidence of an ulterior motive before granting a summary order of the kind you are seeking. Guessing, allegations and assumptions will not be sufficient.

So, you can try but don't be disappointed if the court refuses your request.

BTW, you should consider changing your username in this forum. Family Law matters are supposed to be confidential.

 

[AllForHer]

If you are the Applicant, you cannot file orders for the Respondent's response to be dismissed.

A respondent can respond to an application seeking orders for the application to be dismissed, but an Applicant cannot seek orders for a response to be dismissed. That's essentially asking the Court to have your application proceed undefended, even though the defendant is very much there, willing and able to participate in proceedings.

Everyone has a right to due process in the justice system, including your ex, even if his response doesn't meet your standards (which it doesn't have to, given you're the other party, not the Court itself).

 

[Malissla]

SEC 102Q is only a definition section. Look at s 102QB.

r 9.02 - likely court will say to father fix your response, not throw out his response.

r 10.12 - Looks appropriate. But you will have a high hurdle to jump. Courts do not like to bar people from having their day in court. They will likely need very strong evidence of an ulterior motive before granting a summary order of the kind you are seeking. Guessing, allegations and assumptions will not be sufficient.

So, you can try but don't be disappointed if the court refuses your request.

BTW, you should consider changing your username in this forum. Family Law matters are supposed to be confidential.

I am grateful to you Rod for SEC102B, (Thank you) The Respondents Response was put together by his Lawyer and not the father, having filed a response, (seeking unsupervised time) his lawyer proceeded to file an Amended Response (seeking residence of the children) both the application for unsupervised time and Interim orders for residence were dismissed. Having already Amended his response seeking Interim residence orders that have been dismissed, he is left with only seeking final orders for residence, (unlikely to be successful) so it begs the question that in the event that he Re-Amends his response, - and let me put in the court has only allowed an amended response NOT a Re-amended...

He is basically out of options as to what he can Re-Amend his response to..not notwithstanding that, if he does Re-Amend he would have to rely on an amendment, a different cause of action that he has not previously relied on or indeed mentioned which would give cause for another application to have it struck out? Sec11F reports that father has issues and refuses to let go..will never stop and is unlikely to accept the content of this report! Hence evidence of an ulterior motive. Oh I haven't used my real name Rod, thank you for all your good help Sir.

 

[Malissla]

If you are the Applicant, you cannot file orders for the Respondent's response to be dismissed.

A respondent can respond to an application seeking orders for the application to be dismissed, but an Applicant cannot seek orders for a response to be dismissed. That's essentially asking the Court to have your application proceed undefended, even though the defendant is very much there, willing and able to participate in proceedings. Everyone has a right to due process in the justice system, including your ex, even if his response doesn't meet your standards (which it doesn't have to, given you're the other party, not the Court itself).

His response doesn't meet the court standards and is in breach of Family Law Rules 2004 – Rule 9.01 (2) (a) & (b), Family Law Rules 2004 - Rule 10.12.

 

[AllForHer]

It doesn't matter. The Court won't throw it out because you don't think he's followed the Court's rules. At best, the judge might adjourn and tell him to get legal advice about complying with Court rules, but it won't let the matter proceed undefended just on those grounds.

As I said, you're the Applicant, so you can't seek that his response be dismissed.

 

[Rod]

Not the response per se, but the requested orders may be summarily dismissed if sought for vexatious reasons. High hurdle to jump over.