‘Summary dismissal’ suffers from a non-uniform application across the family law jurisdiction: it’s explicit existence, scope and effect varies across the various core areas of family law practice. On that basis, I have limited the ambit of this article to just one of those core areas for now: applications brought under Part VI of the Family Law Act (‘FLA’) 1996.
I decided to write about ‘summary dismissal’ in this context for a particular reason. There are, of course, applications brought across the Family Law jurisdiction that are without merit, hopeless, not supported with sufficient evidence etc. But, despite having only started my pupillage in October 2021, I have already seen a number of meritless applications being brought (and running) under Part VI of the FLA 1996.
It is important, of course, to consider whether the court has the power to summarily dismiss applications brought under Part VI of the FLA 1996. The answer to that (as is usually the case) is: it’s complex.
There is no explicit rule within the FPR or test (per se) elsewhere dealing with summary dismissal of applications brought under Part VI of the FLA 1996.
The rules under Family Procedure Rule (‘FPR’) 4.4 allows a court to strike out a statement of case for various reasons, including where the statement contains no reasonable grounds for bringing or defending the application. However, importantly (and according to the authors of the FPR, deliberately), the FPR contains no power for summary judgment. It appears to me, therefore, that the powers contained within FPR 4.4 aren’t designed to lead to summary dismissal of applications. It is perhaps more the case that those rules are designed for utilisation within financial remedy proceedings, and indeed, the overwhelming majority of reported decisions where application of FPR 4.4 has been considered, are financial remedy cases.
However, there does appear to be a non-explicit route to summary dismissal of applications brought under Part VI of the FLA 1996.
Readers will, of course, be familiar with the overriding objective (FPR 1.1). FPR 1.4 places a positive duty on the court, in pursuit of the overriding objective, to actively manage cases. The active management of cases includes (insofar as is relevant to this article), deciding promptly which issues require full investigation and hearing and which do not. The court also has wide case management powers: aside from as explicitly provided for, by virtue of FPR 4.1(o), the court may ‘take any other step or make any other order for the purpose of managing the case and furthering the overriding objective’ – that must, in my view, include summarily dismissing applications where it would not be fair or proportionate for those applications to be heard.
I have written the below short scenario because I am keen to know your views on whether you would attempt to have both, either or none of the applications ‘summarily dismissed’ and ultimately whether you think they should be.
The applicant (‘A’) issued an application for a Non-Molestation Order (‘NMO’) and Occupation Order on 1st September 2021.
At the first Directions Hearing, the court gave an indication that A had not filed sufficient evidence to meet the test for the making of a NMO. The court made a permissive direction for the filing of any third party evidence in support of A’s application for a NMO.
The respondent (‘R’) is living in the former matrimonial home; A is back living with their parents. The parties share a child, who is currently living with A.
You are instructed to represent R at the next hearing, listed on 29th February 2022.
You see that R has filed a further statement, exhibited to which are a host of text messages from A to R which show A asking to meet R for a coffee on a number of occasions since the first Directions Hearing. No other evidence has been filed since the first Directions Hearing.
Shortly before the hearing, R informs you that A’s family owns 25 rental properties in the area: 5 of which are currently vacant, all of which are at least a 2 bedroom.
In pre-hearing discussions, counsel for A informs you that both applications are pursued.
What should the court do?
A) Dismiss the application for the NMO
B) Dismiss the application for the Occupation Order
C) Dismiss both of the applications
D) Dismiss neither of the applications
If you think you know the correct course of action, email me at [email protected] with your answer, either A, B, C, or D.
Written by Joshua Brindle, Pupil Barrister, Unit Chambers