BARDEN & BARDEN
[2014] FamCA 745
•14 August 2014
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 would find that the application of the applicant wife filed 28 May 2013 is doomed to failure.
4.The respondent wife quite properly argues that it is a matter for the applicant to satisfy the Court that the respondent has no reasonable prospect of success in her application. The material relied on by the applicant in that regard, other than the opinion of Senior Counsel obtained, is the material filed by the wife in support of her application under s 79A of the Act.
5.Rule 10.12 of the Rules provides for applications for summary orders as follows:
A party may apply for summary orders after a response has been filed if the party claims in relation to the application or response that:
(a)the Court has no jurisdiction;
(b)the other party has no legal capacity to apply for the orders sought;
(c)it is frivolous, vexatious or an abuse of process; or
(d)there is no reasonable likelihood of success.
6.The applicant provided a case outline and summary of argument and referred the Court to two decisions, Beck & Beck [2004] FamCA 92 and Polik & Polik [2012] FamCA 335.
7.The respondent also provided written submissions by way of case outline and drew the attention of the Court to a recent decision of his Honour Justice Tree in Hunter & Morrison (summary dismissal) [2014] FamCA 199.
8.The applicant relied on rr 10.2(c) and (d) of the Rules.
Short history
9.The wife and her late husband were married in 1991 and began living together at that time. There are four children of the marriage, two of whom are adults; the other two are D, aged 17, and J, aged 14.
10.In 2002, the husband was diagnosed with Type 1 Diabetes.
11.In 2009/2010 the husband’s health was an issue.
12.The parties separated either in August 2011 or March 2012.
13.On 20 March 2012 the husband filed an Initiating Application.
14.On 22 May 2012 the wife filed her Response.
15.On 6 November 2012 the husband filed an Application in a Case seeking the appointment of his mother, Mrs B, as Case Guardian.
16.On 9 November 2012, without opposition, that order was made.
17.On 8 January 2013 the wife filed an Amended Response.
18.On 6 March 2013 the husband filed an Amended Application.
19.On 8 March 2013 the husband made a Will leaving his estate to his mother.
20.The matter was set down for a defended hearing for two days over 30 April 2013 and 1 May 2013.
21.On 30 April 2013 the parties were present at Court, both represented by solicitors and counsel. There was a negotiated settlement and final orders were made by consent on that day as follows:
1. By way of alteration of property interests:
1.1The wife must within 2 months from the date of these Orders pay to the solicitors for the husband on his behalf the sum of $240,000.
1.1In addition the wife must within 6 months from the date of these Orders pay to the solicitors for the husband on his behalf the sum of $100,000.
1.2The wife must pay interest on the amounts specified above at the rate prescribed by the Family Law Rules calculated as follows:
(a)as to the sum of $240,000, for any portion of the amount outstanding as at 2 months and one day after the date of these Orders, until the date of payment in full; and
(b)as to the sum of $100,000, for any portion of the amount outstanding as at 2 months and one day after the date of these Orders until the date of payment in full.
2.Subject to the Court being satisfied that procedural fairness has been accorded by the wife to the trustees of the HESTA Superannuation Fund pursuant to section 90MZD of the Family Law Act 1975 (Cth) (“the Act”), a splitting order is made in respect of the wife’s interest of HESTA Superannuation Fund … (“the Fund”) in favour of [Mr Barden] (the husband) in the sum of $40,000 from the wife’s interest in the Fund.
3.That paragraph 2 of these Orders is binding on the Trustee(s) of the Fund.
4.That the amount allocated to the husband is out of the interest of the wife in the Fund and is a base amount of $40,000.00.
5.That pursuant to paragraph 90MT(1)(a) of the Act whenever a splittable payment within the meaning of section 90ME of the Act becomes payable to or on behalf of the wife from her interest in the Fund, the husband is entitled to be paid by the trustees of the Fund the amount calculated in accordance with Part VI of the Family Law (Superannuation) Regulations 2001, using a base amount of $40,000 and there is a corresponding reduction in the entitlement the wife would have had but for these orders.
6.That Order 5 has effect from the operative time.
7.The operative time for the purposes of Order 5 of these Orders is 4 business days after the service of these Orders upon the Trustee of the Fund.
8.That there be liberty to apply to each party and the Trustee(s) in relation to the implementation of these Orders affecting the superannuation interests of the parties and each of them.
9.That until such time as the superannuation split to the husband pursuant to these Orders can be rolled over into a separate account of the husband that:
9.1The wife shall provide the husband with no less than 28 day’s notice in writing before such time as she elects to retire or take a voluntary retirement or for any reason accepts or becomes entitled to access in whole or in part her entitlement in the Fund.
9.2The wife shall direct and authorize the Trustee(s) of the Fund to communicate with the husband and/or any person authorized by the husband in writing:
(a)to answer any reasonable enquiries as may be made by him or on his behalf from time to time in relation to his entitlements in the Fund; and
(b)to provide the husband and/or the husband’s authorized representative, a copy of any notice of any application or request by the wife which seeks release of entitlements in the Fund, in so far as that release may affect the husband’s entitlement in the Fund pursuant to these Orders.
10.The wife by herself, her servants or agents be and is hereby restrained from doing any act or thing which would prevent the husband, his heirs, executors, administrators or nominees from receiving the benefits in the Fund to which he is entitled pursuant to these Orders.
11.In the event that the superannuation split to the husband pursuant to these Orders can be rolled over into a separate account to the husband, each of the parties hereto shall each do such acts and things and execute all such documents as may be necessary to facilitate and to implement that rollover.
12.The wife must at her expense and as soon as practicable, provide to the Court and to the solicitors on the Court record for the husband, documentary evidence that she has accorded procedural fairness to the Trustees of the Fund in relation to these Orders and request that the Court make a declaration that it is satisfied that the wife has complied with section 90MZD of the Act.
13.The wife must do all acts necessary to cause her solicitors to serve upon the Trustees of the Fund a sealed copy of these Orders.
14.The appointment of the Case Guardian for the husband will remain operative to permit her authority or consent to any actions required of the husband to give effect to these Orders.
15.The wife must as soon as practicable, upon notification from the husband’s solicitor that the husband requests implementation of this Order, do all acts to arrange for the horses known as “[X]”, “[Y]” and “[Z]” (also known as “…”), to be dipped and the wife to pay for the dipping costs, and make the horses available for collection from the [Queensland] property by a carrier to be arranged by the Case Guardian, for transport at the husband’s or his Case Guardian’s cost.
16.The wife must forthwith sign all documents and do all acts necessary to effect a transfer of all her interest in the horses [X], [Y] and [Z] to the husband.
17. The wife shall use her best endeavours to locate the watch of the husband’s grandfather and the ring left to him by his late father and shall cause them to be sent forthwith to the solicitors for the husband on his behalf.
18.Otherwise than as specified in these orders each party shall be solely entitled to the items of personalty including but not limited to motor vehicles, farming implements and equipment on the [Queensland] property, savings, livestock , superannuation interests and any other item held in their respective name(s) or possession.
19.Within 21 days from the date of these Orders, the husband (in person or by his Case Guardian) do all acts and sign all documents necessary, including but not limited to release of mortgage to enable the wife to refinance the current loan in her sole name and shall provide any withdrawal of caveat to facilitate such refinance, to transfer to the wife all his right title and interest in the 4 parcels of property comprised in the property known as [M] Road, being all that property contained in Queensland property reference identifiers …93, …02, …03, and …37 (‘the [Queensland] property’), and the wife holds the husband’s interests under the terms of these Orders in trust for him until she has fulfilled her obligations pursuant to these Orders.
20.The husband is at liberty to lodge a caveat on the title to the [Queensland] property (or any portion of that property), and the wife is restrained from selling, further encumbering, or otherwise dealing with the property or any portion of that property other than with the husband’s prior written consent, and other than for the purpose of implementing these Orders, but provided that the husband make available at completion a withdrawal of such caveat in registrable form upon notification by the wife’s solicitors to the husband or his solicitor of the completion of the sale of any one or more of the lots comprising the [Queensland] property, sufficient to discharge the wife’s liability to the husband pursuant to these Orders.
21If the wife defaults in respect of payment of either of the amounts referred to in Order 1.1 or 1.2 and the default persists for one month from the date(s) specified, the wife shall forthwith sign all documents and do all acts and things necessary to sell in one lot the [Queensland] property, subject to and in accordance with the following provisions:
(a)the wife must do all acts and things and execute all instruments, documents and writings so as to cause the property to be sold by auction within 1 month of that default;
(b)the parties must appoint a solicitor or conveyancer to have conduct of the sale for and on behalf of the parties as agreed, or failing the reaching of agreement, as nominated by the President of the Queensland Law Society;
(c)the parties must appoint an auctioneer by agreement or, failing their agreement, as nominated by [Mr N] (Valuer, …) or his nominee, or failing that nomination, by an auctioneer appointed by the husband;
(d)the parties must do all acts and things to accept the advices of the Auctioneer with respect to setting a reserve price and with respect to accepting or rejecting any offers made below the reserve;
(e)if the highest bid attracted for sale at auction is in excess of the reserve price, the parties must do all acts and things and execute all documents so as to cause sale to the highest bidder;
(f)if the [Queensland] property does not sell at the first auction, then either party is at liberty to serve on the other party a notice in writing requesting that the property be offered for auction within the following month, and again each month thereafter, until such time as the said property is sold should either party so request, then paragraph (d) above shall apply mutatis mutandis with the exception that the reserve price shall be 90% of the figure determined by the auctioneer in that paragraph, and the parties shall continue to set a reserve price at a multiple of 90% on each further occasion that the said property is listed for auction, until the property has been sold.
22.Upon completion of sale, the wife must authorise the distribution of proceeds of sale of the property as follows:
(a)payment of all outstanding rates, land taxes (if relevant) and other;
(b)adjustments on the sale, and agent’s commission and costs of sale (if any);
(c)payment of outstanding secured mortgage loan debts;
(d)payment to the husband of any monies payable to the husband pursuant to these Orders; and
(e)payment of any remaining balance to the wife.
23.That pending payment to the husband in full of all monies payable to him under the terms of these Orders:
(a)the wife is to pay the outgoings on the [Queensland] property as and when they fall due, including rates, taxes, mortgage payments, loan payments and any other expenses, as and when they fall due; and
(b)the wife is to maintain payments of premiums insuring the house and buildings on the [Queensland] property sufficient to cover the husband’s interests pursuant to these Orders, and must produce forthwith on demand by the husband or his agent evidence of current insurance coverage
24.If either party refuses or neglects to sign (within 14 days of a written request to do so) any documents necessary to give effect the terms of these Orders, the Registrar of the Newcastle Registry of the Family Court of Australia is hereby appointed pursuant to the provisions of section 106A of the Act to execute such documents on behalf of such party.
25.Each party must do all acts and sign all documents necessary to give effect to these Orders.
The Court Notes:
(A)That there has not yet been the opportunity afforded to the trustees of the wife’s Superannuation Fund so there is liberty granted pursuant to Order 8 to each party and the trustees in the event that the trustees object to what is contemplated in these Orders.
(B)That there be no order as to costs.
22.On 3 May 2013 the parties were divorced.
23.On 7 May 2013, the then solicitor for the husband wrote to the solicitors for the wife advising that the husband was in a more advanced stage of his illness and suggested that the transfer for signing by the husband be forwarded directly to avoid delay “if he is unable or unavailable to sign”.[1]
[1]Affidavit of wife filed 28/05/2013, Annexure KB4
24.In May 2013 the husband died.
25.On 15 May 2013 the wife became aware that the husband had died.
26.On 28 May 2013 the wife filed an Application pursuant to s 79A of the Act seeking that orders 1 to 13 and 19 to 23 inclusive of the orders made on 30 April 2013 be set aside and that in substitution of order 3, the wife receive 100 per cent of the available assets in the net asset pool, or as otherwise determined by the Court. In support of that application the wife filed an affidavit by herself.
27.In that affidavit, the wife relies on an assertion that she was not provided with medical evidence that the husband was close to death or in palliative care. She also relies on assertions relating to the basis for settlement, including the husband’s needs pursuant to s 75(2) of the Act on account of his poor health.
28.The particular s 79A factors identified by the wife for reliance are:
(i)miscarriage of justice;
(ii)suppression of evidence; and
(iii)the catch all clause ‘other circumstances’.
29.On 5 July 2013 interim orders were made as follows:
1.That the consent orders of 30 April 2013 are suspended.
2.The wife is restrained from selling, encumbering or otherwise dealing with the property [M] Road [Queensland].
30.On 24 October 2013 those orders were varied to permit the wife to extend borrowings secured by mortgage on the said property to a maximum borrowing of $360,000.
31.On 11 June 2014 the wife filed a Summons in the Supreme Court of New South Wales (Family Provisions claim). The Estate is yet to respond to that claim. I was told it relates to the interests of the children exclusively.
The law
32.Both parties refer to the decision of the High Court in Lindon v Commonwealth (No 2) [1996] HCA 14. His Honour Justice Kirby, at [14], enunciated the principle behind the rules in any jurisdiction, that is that:
If it is clear that proceedings within the concept of the pleading under scrutiny are doomed to fail, the courts should dismiss the action to protect the defendant from being further troubled, to save the plaintiff from further cost and disappointment and to relieve the court of the burden of further wasted time which could be devoted to the determination of claims which have legal merit.
33.In my view, it cannot be said that this application pursuant to s 79A lacks merit to the extent that there is no reasonable likelihood of success.
34.The orders made by consent on 30 April 2013 clearly include orders for payment to the husband in two instalments over the following six months. Those orders are not inconsistent with the position of the wife. Her assertion is that she knew the husband was ill, but had had not been made aware that his condition had become terminal. It is also not inconsistent with her position that the negotiated settlement was in part to meet the ongoing medical needs of the husband who was by then incapacitated and unable to work.
35.On behalf of the applicant, it is argued that the s 79A application was an abuse of process, given that the children have now made a family provisions claim. Presumably, it was an argument that the application should have been withdrawn. However this argument must fail.
36.A family provision claim, pursuant to the Succession Act 2006 (NSW), has recently been made and the Estate, I am told, has not yet responded . It may be contested. The wife is not in a position to know what stance the Estate will take. What is clear, however, on information provided from the bar table, is that the application is not consented or conceded to by the Estate.
37.Another argument on behalf of the applicant was that the case outline filed in the substantive proceedings by the wife, which became Exhibit 1, refers to the state of the husband’s health in a way inconsistent with her argument in respect of this application, that is, that she was not fully aware of the state of his health. In that case outline, par 6 says this:
The medical evidence reveals that the husband is now in a ‘palliative stage’ which suggests a shortened life expectancy. Whilst this is extremely regrettable (and will no doubt impact the children emotionally), in the event of the husband’s death in the next 12 months or so, the husband’s s 75(2) case is non-existent.
38.I do not accept this submission. The case outline was prepared in anticipation of a contested hearing. It is not evidence, but rather a “follow me guide for the Court” for Judicial officers. Further, the matter was negotiated to settlement for reasons which may or may not be relied on in a contested hearing in relation to the s 79A application.
39.The wife foreshadows a distinction between her knowledge that the husband was in a palliative stage, that he is no longer being actively treated, with the husband being in palliative care.
40.There is no doubt the wife was aware of the husband’s ill health and hospitalisations. The point was also made that as a health professional, she would understand his health. However the wife says that she has an argument based on the limitations of the medical evidence at the time of the negotiation and that is a matter which may or may not succeed.
41.A further argument on behalf of the applicant was that the wife had conceded, through her case outline, that she was carrying the full financial support of the children and expected to continue doing so. I do not accept that argument.
42.Given that this is a contest between the wife, who has responsibility for two of the parties four children in a contest with the estate, the sole beneficiary of which is the mother of the late husband, 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, not only by the wife, but possibly also by the husband himself.
43.For those reasons the application for summary dismissal by the Estate is dismissed.
Costs
44.In her case outline, counsel for the wife submitted that costs should be paid on an indemnity basis in the event that application was dismissed. In the circumstances, time should be allowed for any submissions sought to be relied on by the estate to be made in that respect.
I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cleary delivered on 13 August 2014.
Associate:
Date: 14 August 2014
0
3
2