BARDEN & BARDEN - [2014] FamCA 745

FAMILY COURT OF AUSTRALIA

BARDEN & BARDEN [2014] FamCA 745

FAMILY LAW – PRACTICE AND PROCEDURE – Application for summary dismissal of the wife’s s 79A application by the deceased husband’s estate – where it would be unjust to dismiss the application of the wife without giving her the opportunity to put before the court the argument foreshadowed as to fundamental misapprehension as to the husband’s state of health – where it cannot be said that the wife’s s 79A application lacks merit to the extent that there is no reasonable likelihood of success – application for summary dismissal dismissed.

Family Law Act 1975 (Cth) ss 75, 79A
Family Law Rules 2004 (Cth) rule 10.12, 24.01

Beck & Beck [2004] FamCA 92; (2004) FLC 93-181
Hunter & Morrison (summary dismissal) [2014] FamCA 199
Lindon v Commonwealth (No 2) [1996] HCA 14; (1996)136 ALR 251
Polik & Polik [2012] FamCA 335

APPLICANT: Estate of Mr Barden

RESPONDENT: Ms Barden

FILE NUMBER: (P)NCC 735 of 2012

DATE DELIVERED: 14 August 2014

PLACE DELIVERED: Sydney

PLACE HEARD: Newcastle

JUDGMENT OF: Cleary J

HEARING DATE: 8 August 2014
REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Paige QC

SOLICITOR FOR THE APPLICANT: Emery & Partners

COUNSEL FOR THE RESPONDENT: Ms Sprospton

SOLICITOR FOR THE RESPONDENT:

Condon Charles Lawyers

Orders
(1)That the application of the estate of Mr Barden is dismissed.
(2)The applicant estate has 28 days to provide to the respondent and the court any written submissions sought to be relied on in response to the application for costs by the respondent wife.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Barden & Barden has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT NEWCASTLE
FILE NUMBER: (P)NCC735 of 2012

Estate of Mr Barden
Applicant
And

Ms Barden
Respondent
REASONS FOR JUDGMENT
Introduction
1.This is an Application in a Case filed on 10 July 2014 on behalf of the Estate of Mr Barden (‘the applicant’). It was supported by an affidavit of the solicitor for the Estate, John Liston, and a document filed pursuant to r 24.01 of the Family Law Rules 2004 (Cth) (‘the Rules’) attaching the Grant of Probate establishing Mr B as the executor of the late husband’s estate. The orders sought in the application are:
a)Summary dismissal of the application of the wife filed on 28 May 2013 (an application filed pursuant to s 79A of the Family Law Act 1975 (Cth)) (‘the Act’).
b)That the wife pay the respondent’s estate costs of and incidental to this application.

2.The application was heard on 8 August 2014 and was opposed by the wife.
3.The evidence relied on in respect of the application for summary dismissal was contained in the affidavit of John Liston and is as follows:
I have received advice from Queens Counsel that on the basis of the evidence filed there is a likelihood that the court…

Grounds of appeal

[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.

Continue reading BARDEN & BARDEN

Details

AGLC: BARDEN & BARDEN [2014] FamCA 745
Case: [2014] FamCA 745
Decision Date: 14 August 2014

CaseChat Overview and Summary

The application before Cleary J concerned a dispute between the estate of Mr Barden and the respondent wife. The precise nature of the underlying dispute is not detailed, but the proceedings involved an application by the estate which was ultimately dismissed.

The primary legal issue before the court was whether to grant the application made by the estate of Mr Barden. Following the dismissal of this application, a further issue arose regarding the costs of the proceedings, with the respondent wife seeking an order for costs against the applicant estate.

Cleary J dismissed the application brought by the estate of Mr Barden. The court then addressed the question of costs, indicating that the applicant estate would have a period of 28 days to provide written submissions in response to the respondent wife's application for costs.

Orders

Orders of the court

(1) That the application of the estate of Mr Barden is dismissed.

(2) The applicant estate has 28 days to provide to the respondent and the court any written submissions sought to be relied on in response to the application for costs by the respondent wife.

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

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Ratio Decidendi

Legal Principle Established

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COUNSEL FOR THE RESPONDENT:	Ms Sprospton
SOLICITOR FOR THE RESPONDENT:	Condon Charles Lawyers