FAMILY LAW – PROPERTY – INTERIM – JOINDER – Where the wife seeks joinder of the husband’s father to the proceedings – Where parcels of real property are owned by the husband, the father and several trusts – Where the wife seeks declaratory relief that the father holds his right interest and title to farming property on joint endeavour or common intention constructive trust for the husband alone or spousal parties together – Where the father resists his joinder to the proceedings – Necessity of joinder to be determined by consideration of reasonable prospects of success and summary dismissal principles – Where no reasonable prospects of success in the wife’s claims to existence of constructive trusts – Where joinder of the father presently unnecessary – Application for joinder dismissed.
FAMILY LAW – PRACTICE AND PROCEDURE – Subpoenas – Where the Court is unable to determine that the documents sought by the wife have apparent relevance – Subpoenas set aside.
Legislation:
Family Law Act 1975 (Cth) Pts VIII and VIIIAA ss 4, 75, 78, 79, 85A, 90AC, 90AE
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Abano & Abano [2024] FedCFamC1F 331
Case
[2024] FedCFamC1F 331
Decision Date
CaseChat Overview and Summary
Ms Abano sought to join Mr Abano, the father of her former husband, to family law property proceedings. The Court was asked to determine whether Mr Abano should be joined to the proceedings, and whether subpoenas for documents from various entities should be set aside. The central issue was whether the wife's claims against Mr Abano had reasonable prospects of success and whether the joinder was necessary. The wife sought declaratory relief that Mr Abano held his interest in farming property on a constructive trust for her former husband or jointly with her. The wife also sought to subpoena documents from various entities, including a bank, accountants, and a company.
The Court found that the wife's claims against Mr Abano did not have reasonable prospects of success. The wife's evidence did not establish a joint endeavour or common intention constructive trust, nor did it demonstrate that Mr Abano's interest was held on trust for the former husband. The Court also found that the documents sought by the wife's subpoenas did not have apparent relevance to the proceedings. The Court concluded that joinder of Mr Abano was not necessary at this stage, and the wife's application for joinder was dismissed. The subpoenas were also set aside.
The Court's reasoning was grounded in the statutory framework provided by the Federal Circuit and Family Court of Australia Act 2021, which allows for summary dismissal if a proceeding has no reasonable prospects of success. The Court considered the principles established by the Full Court in Ritter & Ritter, which emphasised that a proceeding may have no reasonable prospects of success even if it is not hopeless or bound to fail. The Court exercised its discretion cautiously, recognising the importance of providing all parties with access to the court. The wife was ordered to file amended Points of Claim and the proceedings were stood over for callover.
Orders
Orders of the court
DUC 403 of 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:
MS ABANO
Applicant
AND:
MR C ABANO
Respondent
MR ABANO
Prospective Respondent
ORDER MADE BY:
HARPER J
DATE OF ORDER:
17 MAY 2024
THE COURT ORDERS THAT:
1. Leave to join Mr Abano as the proposed Second Respondent is refused.
2. The Points of Claim filed by the Applicant Wife (“the wife”) on 31 January 2024, to the extent they claim relief against the proposed Second Respondent, be struck out.
3. The wife file and serve amended Points of Claim consistent with this judgment by no later than close of Registry filing 28 days from the date of these orders.
4. The wife’s Amended Application in a Proceeding filed on 4 April 2023 be otherwise dismissed.
5. The subpoenas issued by the wife to D Bank, E Accountants and F Company be set aside.
6. The proceedings be stood over to 5 September 2024 for callover at a time to be advised.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
The relevant power to order summary dismissal in this Court is now found in s 46 of Federal Circuit and Family Court of Australia Act 2021 (Cth) (“the FCFCOA Act”) as follows:46 Summary judgment(1) ...(2) The Federal Circuit and Family Court of Australia (Division 1) may give judgment for one party against another in relation to the whole or any part of a proceeding if:(a) the first party is defending the proceeding or that part of the proceeding; and(b) the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding.(3) For the purposes of this section, a defence or a proceeding or part of a proceeding need not be:(a) hopeless; or(b) bound to fail;for it to have no reasonable prospect of success.(4) This section does not limit any powers that the Federal Circuit and Family Court of Australia (Division 1) has apart from this section. Section 46 applies to the wife’s application for joinder, since it falls within the definition of a “Proceeding” in s 7 of the FCFCOA Act, and the father is a party to it. In addition, r 10.09(1)(d) of the Rules empowers the Court upon application to make summary orders where an application has “no reasonable likelihood of success”. Nothing turns on the difference between “no reasonable prospects” in s 46 of the FCFCOA Act and “no reasonable likelihood” in r 10.09. Rule 10.11(1) empowers the Court to make a range of summary orders, including dismissing all or part of the proceedings. In Ritter & Ritter (2020) FLC 93-957 at [27], the Full Court adopted the statement of principle by Kirby J in Lindon v Commonwealth of Australia (No 2) (1996) 136 ALR 251 at 255–256, which included the caution that: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.(Footnotes omitted) But the expressions “reasonable prospects” and “reasonable likelihood” introduce a standard of reasonableness in exercising a power to summarily dispose of proceedings. Accordingly, the Full Court has recognised that although a respondent’s case is not hopeless or bound to fail, nonetheless it has no reasonable prospects of success (Ebner & Pappas (2014) FLC 93-619 at [62]; Arthurman & Arthurman (2019) FLC 93-926 at [17]–[18]). More recently, in Newett & Newett (No 8) (2023) FLC 94-128 the Full Court explained:57.Section 46(2) of the FCFCOA Act empowers the Court to grant summary disposal against a party who has no reasonable prospect of successfully prosecuting a proceeding or part of a proceeding. It is important to stress that to conclude a proceeding has no reasonable prospects of success, it is not necessary to find it is either hopeless or bound to fail (s 46(3)). Rules 10.09 and 10.11 of the Rules also grant a power to summarily dismiss proceedings with no reasonable “likelihood” of success.58. The principles governing an exercise of discretion to summarily dismiss proceedings are well known. As can be seen, the legislation has introduced the concept of reasonableness in assessing the prospects of a claim. In Spencer v Commonwealth of Australia (2010) 241 CLR 118, the High Court construed the wording identical to s 46, used in s 31A of the Federal Court of Australia Act 1976 (Cth). At [22], French CJ and Gummow J said “the criterion of a ‘reasonable prospect’ of success has been understood in analogous statutory settings to mean a ‘real’ rather than ‘fanciful’ prospect”, and the expression ‘no reasonable prospects of success’ applies to a case in which the pleadings disclose “no reasonable cause of action and their deficiency is incurable.” Hayne, Crennan, Kiefel, and Bell JJ further held at [52]:... effect must be given to the negative admonition in sub-s (3) that a defence, a proceeding, or a part of a proceeding may be found to have no reasonable prospect of successful prosecution even if it cannot be said that it is “hopeless” or “bound to fail”. ... [I]t is important to begin by recognising that the combined effect of sub-ss (2) and (3) is that the enquiry required in this case is whether there is a “reasonable” prospect of prosecuting the proceeding, not an enquiry directed to whether a certain and concluded determination could be made that the proceeding would necessarily fail.59. Consequently, the threshold for finding a proceeding has no reasonable prospect of success is different and less onerous than for other bases upon which to order summary dismissal. For example, the High Court has recently reiterated that concluding that an issue or cause is vexatious or frivolous requires the satisfaction of a higher threshold than finding it has no reasonable prospects of success: Citta Hobart Pty Ltd v Cawthorn (2022) 400 ALR 1 at [70]–[71].60. This means that there may be cases in which although a proceeding is not hopeless or bound to fail, it does not have a reasonable prospect of success. Nonetheless, the power to summarily dismiss must always be exercised cautiously because it is a serious matter to deprive a person of access to courts of law: Lindon v Commonwealth of Australia (No 2) (1996) 136 ALR 251 at 255–256; Bigg v Suzi (1998) FLC 92-799 at 84,974–84,975; Pelerman v Pelerman (2000) FLC 93-037 at [46]; Korsky and Bright (No 2) (2007) FLC 93-352; Simmons & Simmons (2008) 40 Fam LR 520 at [51]; Friar & Friar [2011] FamCAFC 71 at [51]; Lysaght Building Solutions Pty Ltd (t/as Highline Commercial Construction) v Blanalko Pty Ltd (2013) 42 VR 27 at [27]; Ebner & Pappas at [57]; Olman & Teitzel [2020] FamCAFC 136 at [28]; Karlsson & Karlsson [2020] FamCAFC 207 at [38] and [41].61. The question of whether a proceeding has no reasonable prospect of success necessitates the making of value judgments “in the absence of a full and complete factual matrix and full argument”, with the result that the provision vests a discretion in the Court: Kowalski v MMAL Staff Superannuation Fund Pty Ltd (2009) 259 ALR 319 at [28]. However, the incompleteness of the factual matrix is accommodated in favour of the respondent to the summary dismissal application by taking their evidence “at its highest”. In Ritter & Ritter (2020) FLC 93-957 at [66], the Full Court explained:The determination of [summary judgment] must only take into account the material on which the respondent seeks to make out the case, or as often expressed takes the respondent’s case “at its highest” unless the respondent’s version is inherently incredible or unreliable (see Munnings v Australian Government Solicitor (1994) 68 ALJR 169 at 171; Bigg & Suzi (1998) FLC 92-799; Webster v Lampard (1993) 177 CLR 598 at 608) ...