28 August 2020
Family law - Summary dismissal
I am instructed by my respondent client to apply for summary dismissal. I have filed a response, notice of risk and supporting affidavit. I have not filed an application in a case, although the response seeks the application be dismissed.
I will recommend they engage a barrister.
Please provide me with some guidance as to the procedure and likely orders.
Thank you for the question.
If the response seeks summary dismissal, there is no need to file an application in a case.
The threshold for summary dismissal is high. See r 10.12 of the Family Law Rules 2004 or r 13.10 of the Federal Circuit Court Rules 2001 as to what needs to be established.
The court will most likely make procedural orders for the conduct of the matter, which may include filing affidavits, an interim hearing and written submissions or a case outline before the interim hearing.
The court may give an initial indication as to the likelihood of the application for summary dismissal succeeding. If the court indicates that it is unlikely to succeed, the client should be advised accordingly.
Engaging counsel to appear and advise on the application would be a good investment for the client.
Regards
Mentor
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