FEDERAL CIRCUIT COURT OF AUSTRALIA
| ADLER & MADIGAN | [2019] FCCA 194 |
| Catchwords: FAMILY LAW – Interim – property. |
| Legislation: Family Law Act 1975 (Cth) s.79A |
| Cases cited: Badawi & Badawi [2016] FamCA 804 Crescendo Management Pty Ltd v Westpac Banking Corporation (1988) 19 NSWLR 40 Holland & Holland [1982] FamCA 31 |
| Applicant: | MS ADLER |
| Respondent: | MS MADIGAN |
| File Number: | BRC 2714 of 2018 |
| Judgment of: | Judge Spelleken |
| Hearing date: | 5 November 2018 |
| Date of Last Submission: | 26 November 2018 |
| Delivered at: | Brisbane |
| Delivered on: | 1 February 2019 |
REPRESENTATION
| Solicitors for the Applicant: | Cornerstone Law Offices |
| Solicitors for the Respondent: | Raymond Murphy Lawyer |
THE COURT ORDERS:
That the sum of $28,016.65 be paid to the respondent from the funds held in the trust account of Spranklin McCartney Lawyers.
That the sum of $41,185.48 be paid to the applicant from the funds held in the trust account of Spranklin McCartney Lawyers.
That the sum of $11,998.80 be held in the trust account of Spranklin McCartney Lawyers.
That the respondent’s application to set aside the Order of 9 May 2018 be dismissed.
That the respondent be granted leave to file and serve a response in relation to costs within twenty-eight (28) days of the date of this judgment.
IT IS NOTED that publication of this judgment under the pseudonym Adler & Madigan is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRC 2714 of 2018
| MS ADLER |
Applicant
And
| MR MADIGAN |
Respondent
REASONS FOR JUDGMENT
Introduction
The Court is asked to summarily dismiss the orders sought by the respondent husband Mr Madigan (‘the husband’) against the applicant wife Ms Adler (‘the wife’) filed on 2 November 2018 to set aside the final orders for a property settlement made by consent on 9 May 2018 (‘the Orders’).
The husband’s application was filed as a response to the wife’s Application in a Case which sought to enforce the final orders on 6 September 2018 for the division of the former matrimonial property at Property A with the husband.
The final property settlement orders are as follows:
1. That the net assets of the parties (including superannuation) be divided equally between the parties.
2. The real property situated at Property A (“the real property”) be listed for sale, forthwith, and the parties do all such things as may be necessary and pay all such monies equally so as to effect the sale of the real…
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- ADLER & MADIGAN [2019] FCCA 194
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- [2019] FCCA 194
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CaseChat Overview and Summary
The central legal issue before the Court was the interpretation and application of section 17A of the *Federal Circuit Court of Australia Act 1999* (Cth). This provision allows the Court to grant summary judgment if satisfied that a party has no reasonable prospect of successfully prosecuting or defending a proceeding. The Court was required to determine what constitutes "no reasonable prospect" of success, particularly in light of subsection 17A(3), which clarifies that a proceeding need not be hopeless or bound to fail to fall within this category.
Spelleken J, referencing *Spencer v Commonwealth of Australia*, emphasised that the phrase "no reasonable prospect" requires a different enquiry than under earlier procedural regimes that demanded a certain and concluded determination of failure. The Court noted that the legislative purpose of section 17A would be defeated if its application were confined to cases previously covered by older, different procedural rules. While acknowledging that the power to dismiss an action summarily should not be exercised lightly, the Court indicated that the meaning of "no reasonable prospect" is best elucidated through a succession of decided cases, rather than by attempting to define it with a fixed lexicon of terms such as "frivolous" or "untenable". The Court stressed the importance of giving full weight to the expression as a whole and avoiding judicial glossing that could unduly restrict its operation.
Orders
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
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Ratio Decidendi
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