FAMILY LAW – SUMMARY DISMISSAL – Where the parties reached consent orders in relation to their property dispute in 2019 – Where the husband alleges that the wife subsequently caused emails to be sent to his employer resulting in his unemployment – Where there was a provision in the consent orders preventing the wife from contacting his employers – Where the husband brought an application pursuant to s 79A(1)(c) – Where the wife sought the summary dismissal of the husband’s application – Where the wife relied on evidence which demonstrated factual disputes appropriate for a final hearing – Where there were disputes as to the interpretation of the consent orders – Where a final hearing is needed in order to determine the disputes – Application dismissed.
FAMILY LAW – COSTS – Where wife wholly unsuccessful on summary dismissal application.
[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 Baros & Baros
Sign in free to access the full text
Details
AGLC
Baros & Baros [2021] FamCA 534
Case
[2021] FamCA 534
Decision Date
CaseChat Overview and Summary
In *Baros & Baros*, Harper J of the Family Court of Australia considered an application by the wife for the summary dismissal of the husband's application. The husband had brought an application pursuant to s 79A(1)(c) of the *Family Law Act 1975* (Cth), alleging that the wife had caused emails to be sent to his employer, resulting in his unemployment, in breach of a provision within the parties' 2019 consent orders that prevented the wife from contacting his employers. The wife sought summary dismissal on the basis that the husband's application had no reasonable prospect of success.
The primary legal issue before the court was whether the husband's application under s 79A(1)(c) had no reasonable prospect of success, thereby justifying summary dismissal under s 45A of the *Family Law Act 1975* (Cth) and rule 10.12 of the *Family Law Rules 2004* (Cth). This required the court to assess whether there were significant factual disputes that necessitated a final hearing, particularly concerning the interpretation of the consent orders and the wife's alleged conduct.
Harper J found that the wife's application for summary dismissal could not succeed. The court determined that the husband's application, based on the wife's alleged breach of a central provision of the consent orders, raised factual disputes that required determination at a final hearing. The judge noted that the broad and open-ended nature of the "just and equitable" consideration under s 79A(1) made it inherently difficult to resolve on a summary basis, and that the wife's submissions actually exposed the need for a final hearing. Consequently, the wife's application for summary dismissal was dismissed.
The wife was ordered to pay the husband's costs of and incidental to her dismissed application, as she had been wholly unsuccessful. The matter was then referred back to the Docket Registrar for further case management.
Orders
Orders of the court
THE COURT ORDERS THAT:
1. The Application in a Case filed by the Respondent Wife on 22 December 2020 be dismissed.
2. The Respondent Wife pay the Applicant Husband’s costs of an incidental to the Application in a Case filed on 22 December 2020 as agreed or assessed in accordance with the Family Law Rules 2004 (Cth).
3. The matter be referred back to the Docket Registrar for further case management.
Note: The form of the order is subject to the entry in the Court’s records.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
On 12 February 2021, directions were made for the filing of documents and the matter was listed before me for interim hearing. EVIDENCE RELIED UPON The wife relies upon the following documents: (a)her Amended Application in a Case filed 25 March 2021; (b)her affidavit filed 25 March 2021;(c)the affidavit of Mr K filed 26 March 2021;(d)the affidavit of Ms L filed 25 March 2021; and (e)the Tender Bundle provided 26 March 2021. I note that there was objection by the husband to the affidavits listed above at b – d. The husband contended that his evidence should be taken at its highest (Webster v Lampard (1993) 177 CLR 598; [1993] HCA 57 at 608; Munnings v Australian Government Solicitor (1994) 68 ALJR 169; [1994] HCA 65 at 171), and consequently there was no place for evidence from the wife. Objection was also taken on the basis that orders had been made for one affidavit only by each party. However, as the authorities discussed later make clear, the Court must evaluate the prospects of success of the husband for the purposes of the wife’s application. While the Court does not embark on some kind of mini-trial, it must grapple in part with the question whether there are factual disputes which should be permitted to go to trial. Leave was granted for the wife to rely on her material for this reason. By relying on her own evidence of course she ran the risk of helping to establish real or not fanciful factual disputes which should proceed to final hearing. The husband relies upon the following documents:a.his Response to the Application in a Case filed 4 March 2021; b.his affidavit filed 4 March 2021; and c.his Tender Bundle provided 26 March 2021. In addition, the orders of 2 July 2019 were marked as “Exhibit A”, whilst the orders of 25 November 2019 were marked as “Exhibit B”, having both been tendered by the wife with no objection. THE LAW – SUMMARY DISMISSAL Although the wife did not refer to s 45A of the Act, as the husband pointed out in his written submissions, this section is the jurisdictional basis on which a summary dismissal can be ordered by the Court. Section 45A relevantly provides: 45A Summary decrees…No reasonable prospect of successfully prosecuting proceedings(2) The court may make a decree for one party against another in relation to the whole or any part of a proceedings if:(a) the first party is defending the proceedings or that part of the proceedings; and(b) the court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceedings or that part of the proceedings.When there is no reasonable prospect of success(3) For the purposes of this section, a defence or proceedings or part of proceedings need not be:(a) hopeless; or(b) bound to fail;to have no reasonable prospect of success. In addition, a party may apply for summary dismissal pursuant to rule 10.12 of the Family Law Rules 2004 (Cth) (“the Rules”), which is in the following terms; 10.12 Application for summary ordersA 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.
Decision
Reasons for decision
All these matters may ultimately bear on the just and equitable question, but they may not. For example, it is not self-evident why the husband’s consent to the final orders with legal advice is of any relevance when his application under s 79A(1)(c) is based upon the wife’s breach of one of the final orders, Order 13, which the husband states was central to him entering into the final orders at all. This, together with the other matters adverted to in the wife’s submissions, require factual findings to be made. In my view, the broad and open ended scope of the expression “just and equitable” make it inherently inappropriate for determination on a summary dismissal application, although I do not rule out the possibility. In any event, the wife’s submissions tend to expose the need for a final hearing to determine the just and equitable question in the circumstances of these proceedings.CONCLUSION I am not persuaded the wife has shown the husband has no reasonable prospect or likelihood of success in prosecuting his claim. Her application will be dismissed. Both parties claimed costs against the other on this application. The wife has been wholly unsuccessful. According to the evidence, both parties will receive funds from the sale of the former matrimonial home by virtue of previous orders. Taking account of s 117(1) and (2A), I see no reason why the wife should not pay the husband’s costs her application. I see no point in putting the parties to the expense of seeking further submissions on costs. I will also make a costs order in favour of the husband.