Batey-Elton and Elton (No 5)

FAMILY COURT OF AUSTRALIA

BATEY-ELTON & ELTON (NO. 5)

[2010] FamCA 395

FAMILY LAW – PROPERTY – s 79A application – Dismissal on conclusion of wife’s case where there is insufficient evidence to call upon the husband

Family Law Act 1975 (Cth)

Beck & Beck (2004) FLC 93-181
Bigg & Suzi (1998) FLC 92-799
Cawthorn & Cawthorn (1998) FLC 92-805
Crescendo Management Pty Ltd & Westpac Banking Corporation (1988) NSWLR 40
Custodio & Pinto and ors (2006) FLC 93-279
D’Orta-Ekenaike & Victoria Legal Aid (2005) HCA 12
Fejo & The Northern Territory (1998) HCA 58
Kokl and Kokl (1981) FLC 91-078
Korsky & Bright (2007) FamCA 245
Linden & The Commonwealth No 2 (1996) 70 ALJR 541
Liu & Liu (1984) FLC 91-572
Pelerman & Pelerman (2000) FLC 037

APPLICANT:

Ms Batey-Elton

RESPONDENT:

Mr Elton

FILE NUMBER:

TVF

2250

2004

DATE DELIVERED:

29 April 2010

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Cronin J

HEARING DATE:

27, 28 April 2010

REPRESENTATION

THE APPLICANT:

In person

COUNSEL FOR THE RESPONDENT:

Mr G. Page SC

SOLICITOR FOR THE RESPONDENT:

Rod Madsen

Orders

That the application of the wife filed on 4 October 2005 be dismissed.
That all injunctions set out in the orders of this Court made on 13 December 2006 in relation to the husband and C Company Pty Ltd are forthwith discharged.
That the husband’s application for an order under s 118 of the Family Law Act 1975 (Cth) is dismissed.
That save as to issues of costs, the husband’s response filed on 23 August 2006 is dismissed.
That the time for filing notice of appeal by any party shall not commence to run until the date referred to on the settled reasons for judgment when signed and dated by my Associate.
That any party desirous of seeking any order for costs arising out of these proceedings, do so by written application (not in a form of an application in a case) supported by evidence and submissions all of which are to be filed with my Associate and served upon the wife, the Trustee in Bankruptcy and the Independent Children’s Lawyer no later than 4.00pm on 18 May 2010 and any reply thereto be filed and served in the same way by 28 May 2010 and the matter be otherwise determined by me in chambers.

IT IS CERTIFIED:

That pursuant to Order 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel including senior counsel to attend.

IT IS NOTED that publication of this judgment under the pseudonym Batey-Elton & Elton is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: TVF 2250 of 2004

MS BATEY-ELTON

Applicant

And

MR ELTON

Respondent

REASONS FOR JUDGMENT

At the close of the wife’s case yesterday, senior counsel for the husband made an application for the dismissal of that case. For the reasons which follow, the husband must succeed.
Prior to the adjournment yesterday afternoon, I indicated to the wife that I would consider the position overnight as she was unrepresented and I wanted to contemplate a number of matters relating to what she had argued but also those she could argue in opposition to senior counsel’s application for summary dismissal. In the course of that discussion, the wife had me confirm that she was required to be here today and she made specific reference to the fact that she needed to come from the Sunshine Coast by the 7 am train.
As I deliver these reasons, it is now 11 am. I am told by senior counsel for the husband that the train from the Sunshine Coast was on time according to Queensland Rail. The wife has been called three times outside of the court by my court officer and there has been no response and no appearance on her behalf.
I have had inquiries made about whether there is any message from her and it appears there is none.
Inquiries have been made by Mr Page’s instructor of the wife’s home telephone number and there is apparently no response. I do not know why she is not here but it seems to me pointless for me to delay what I would describe as the inevitable. For that reason, despite her absence, I propose to deliver reasons why, as I said, the husband’s dismissal application must succeed.
The wife filed an application on 4 October 2005 relevantly seeking the following orders:
a)That orders 2, 2A and 5 of the orders made 10 September 2004 be discharged and in substitution, an order be made that the husband pay to the wife within 21 days, $1.4 million.
b)That the wife also have her costs paid by the husband.
By his response, the husband sought a dismissal of that application. In addition, and since the application was filed, the husband has sought a summary dismissal of her proceedings. The summary dismissal application has been adjourned on a variety of occasions.
Throughout the many years of litigation, the husband has been represented by a solicitor and in respect of hearings in this court, by senior counsel. Initially, the wife was represented by lawyers including in this court on at least one occasion by counsel on a pro bono basis. As I understand it, that pro bono lawyer was organised with the assistance of the court.
The wife has consistently said she could not conduct the proceedings without legal representation. On her own statement, she has had the assistance of a Mr B who has featured in various judgments of this court relating to the matter. Despite Mr B’s assistance, the wife has, as late as yesterday and the day before, sought that the court, effectively, provide her with legal representation. When that issue was fleshed out, what the wife actually sought was for a fund to be provided her to enable her own payment of legal representatives, the engagement of experts and the obtaining of witnesses to come to court. There comes a point in time, however, when the court’s efforts to assist a person such as the wife can both create injustice to the other party and also significantly drain the already stretched resources of the court.
The court file is in seven boxes each replete with volumes of documents. The parties have litigated in the Federal Magistrates Court of Australia, this Court including the Full Court and also the Supreme Court of Queensland.
The extent of the voluminous file has a tendency to hide two important features. First, despite her constant mantra about the need for lawyers to assist her prepare and run her case, there is no indication of serious activity to address the issue of preparation and compliance with orders as would be required of any litigant represented or otherwise. Evidence of that is clear from not only the wife’s lack of activity subsequent to the orders I made on 15 February 2010 but also her non-compliance with orders that I then made.
During the intervening period, however, despite saying she could not prepare for a trial without lawyers, she conducted a Full Court appeal with voluminous submissions; apparently prepared affidavits that she intended to rely upon if granted leave in the appeal; prepared an application before me for Tuesday of this week seeking ten proposed orders that included an adjournment pending the issue of prerogative writs in the High Court of Australia; and finally, overnight on Tuesday night, prepared a long list of authorities relating to litigation funding along with an affidavit in support of an oral application. The affidavit was replete with legal jargon that indicated that if the wife had no legal training or experience, she already had ready and quick access to a trained legal mind. In addition to those matters, the wife came armed with a list of affidavits she intended to rely upon, even to the extent of comprehensive details as to the relevant paragraph numbers that she would rely upon.
That document could only be of significance and relevance if her adjournment application failed and she was required by the court to proceed to deal with the substantive issue. I mention these matters because the wife consistently said she could not conduct the proceedings as she wanted to. I mention them also because despite the level of detail to which she descended and the apparent assistance she had, I tried on 15 February 2010, and more recently, to ensure that her absence of legal representation did not prejudice her. Despite her view to the contrary, the wife has been given every assistance this court can give to ensure a fair hearing. The reality, however, is that the evidence is what it is. It is contained in a variety of affidavits that she swore both before and after the 2004 final orders.
Some of that material was prepared for the wife by lawyers. It is important at this point to note that the Family Law Rules 2004 require that parties file one trial affidavit per witness for a final hearing. The rules provide that the affidavits for interim hearings are not to be used on a final hearing basis. I specifically canvassed with the wife on 15 February 2010, the nature of the case and the orders she proposed to seek. I canvassed with her and made detailed orders which were the subject of her unsuccessful appeal about the fact that she had to file her trial affidavit material. Notwithstanding those orders, and as she said, in expectation of successful appeal, she did nothing. Her lack of preparation required me to laboriously wade through the documents I earlier mentioned but then to spend further time hearing objections to evidence.
To assist in that process, I provided the wife with a copy of ss 55 and 56 of the Evidence Act 1995 (Cth) and the flowchart from the textbook written by Mr Rogers. The wife complained, despite all of that, that I had not permitted her to call evidence about what had occurred just prior to the making of the orders in September 2004. I reject that. Leaving aside the wife’s blatant disregard for the rules of court and the orders I earlier referred to, I asked her what other evidence she wanted to call. She consistently referred to wanting to call evidence about the husband’s dishonest character. She wanted to use his affidavits and those of his lawyer to show he had been contemptuous of orders of this court and the Supreme Court of Queensland. She wanted to call doctors about her complaints to them of family violence. She wanted to call the mediator from the mediation to which I shall refer below.
The wife wanted to call the solicitor who appeared for the husband when she was unrepresented before Monteith J. She referred to the transcript of proceedings before Monteith J but upon my querying what use she wished to put it to, she declined to tender it even as evidence of what Monteith J was told prior to the making of the orders.
None of the witnesses to whom I have referred, when I examined their potential probative value with the wife, would have advanced the quality of her evidence which I endeavoured to elicit from her. Thus, even leaving aside the question of the wife’s failure to do anything about preparing for this hearing, I am not at all convinced that there is any further evidence that could be called that would enable this court to do anything different from that which I am about to do.
A second important feature hidden because of the voluminous nature of this file is that a number of people and issues have been on hold for a very long time. The husband had the fruits of an order which he would maintain was achieved by consent of the wife but, importantly, the court endorsed in 2004 those orders as a just and equitable outcome. There is nothing contrary to suggest that Monteith J did anything other than consider the order appropriately as required by s 79(2) of the Act.
Since 2004, the husband has had to face, and maybe yet to face, a contempt application in the Supreme Court of Queensland because the judge of that court made injunctive orders the effect of which were that moneys were injuncted in the hands of the husband until the proceedings of the wife in this court were concluded.
In addition, for reasons which remain obscure, the wife was made bankrupt in circumstances where her own solicitor was a creditor. Whilst there is nothing unique about that, what is troubling is that a bankruptcy trustee was required to continue to monitor these proceedings because the property pursued by the wife was property in existence as her entitlement under the 2004 orders, prior to her bankruptcy.
A solicitor on behalf of the trustee holds a watching brief still despite the fact that the wife is now apparently discharged from bankruptcy. In circumstances where there are voluminous materials on the court file from many applications before the court, the court has a responsibility on behalf of the public to use its resources appropriately. Where there is no cogent evidence to suggest that a self-represented litigant is focusing on the most critical aspects of getting a case heard and orders are not complied with, the court should conclude that the mantra to which I earlier referred is but fog and smoke. I cannot see that any significant injustice is being done in those circumstances in dealing with a case where there is little prospect of the wife seriously addressing the issues about which she complains.
I turn then to the husband’s application for dismissal in the context of the wife’s evidence being not only at its highest persuasive point but also its only point.
Before turning to that evidence, it is important to look at the law relating to both s 79A and that relating to summary dismissal.
The wife’s application was couched in terms of seeking to vary the orders of September 2004. In the proceedings before me in February 2010, I teased out the issues with the wife. She subsequently moved to a new position. It was clear, as at February 2010, her application was based on s 79A(1)(a), that position altered at the commencement of this part of the hearing to include s 79A(1)(c). The relevant parts of s 79A read as follows:
(1) Where, on application by a person affected by an order made by a court under section 79 in property settlement proceedings, the court is satisfied that:
(a)there has been a miscarriage of justice by reason of fraud, duress, suppression of evidence (including failure to disclose relevant information), the giving of false evidence or any other circumstance; or
…
(c)a person has defaulted in carrying out an obligation imposed on the person by the order and, in the circumstances that have arisen as a result of that default, it is just and equitable to vary the order or to set the order aside and make another order in substitution for the order;…
…
the court may, in its discretion, vary the order or set the order aside and, if it considers appropriate, make another order under section 79 in substitution for the order so set aside.
Dealing first with s 79A(1)(a), notwithstanding the wife’s assertion that the orders were made under pressure or duress, it is helpful to look at the other potential grounds in s 79A(1)(a) because this is a summary dismissal application and the wife is not represented.
Whatever may have been the wife’s view about the injustice of the orders, the question that needs to be considered here is what occurred up to the making of the orders, and then if there is evidence supporting a ground, the wife must still show there has been a miscarriage of justice. Thus, the evidence must focus on:
·     fraud by a party;
·    duress to a party;
·    suppression of evidence by a party including a failure to disclose relevant information to the other party, (that is wilful concealment of matters required);
·    the giving of false evidence before the order is made, (that is that relevant evidence on which the order was made was false);
·    or, any other circumstances. (Any other circumstances must mean circumstances of a nature that would amount to a miscarriage of justice).
The wife makes many complaints about the husband’s disclosure, but they relate to details after the orders were made.
The wife asserts duress. Traditionally, at common law, duress required the compulsion of a person by physical or mental harm. See for example Kokl and Kokl (1981) FLC 91-078. It is well established by a variety of authorities that the concept of duress has expanded to encompass things such as economic duress. In The Laws of Australia vol 79 at page 265, the following passage appears:
Duress as a ground for restitution is the application of illegitimate pressure by one party which contributes to causing another party to enrich the first. Illegitimate pressure takes various forms, including threats directed at the other party or a close relative, threats to property or business interests, and threats of industrial action.
In a case of Crescendo Management Pty Ltd & Westpac Banking Corporation (1988) NSWLR 40, McHugh JA, as he then was, said:
The rationale of the doctrine of economic duress is that the law will not give effect to an apparent consent which was induced by pressure exercised upon one party by another party when the law regards that pressure as illegitimate:
His Honour went on to say:
The proper approach in my opinion is to ask whether any applied pressure induced the victim to enter into the contract and then ask whether that pressure went beyond what the law is prepared to countenance as legitimate? Pressure will be illegitimate if it consists of unlawful threats or amounts to unconscionable conduct. But the categories are not closed. Even overwhelming pressure, not amounting to unconscionable or unlawful conduct, however, will not necessarily constitute economic duress.
I raise this particular issue because of the fact that the wife, in evidence to which I shall refer, claims to have been “starved” by the husband subsequent to separation. However, on any view, looking at that test as set out by McHugh JA, the wife’s evidence falls well short.
I turn then to the law relating to s 79A(1)(c), stressing again that this was a recent issue raised by the wife. As I have set out earlier, s 79A(1)(c) relates to a situation in which a person has defaulted in carrying out an obligation imposed upon that person by an order made under s 79, and in the circumstances that have arisen as a result of that default, it is just and equitable to vary the order or set it aside. A party cannot successfully seek an order under that provision as a result of their own default unless that default was as a result of circumstances beyond their control.
In either s 79A(1)(a) or (c), the essential component is a miscarriage of justice. That really refers to the integrity of the judicial process. The miscarriage must arise out of the process. It can only occur by reason of a fact or event which occurs before or at the time of making the order or, in the case of s 79A(1)(c), something that has occurred after the order has been made.
To succeed in the s 79A(1)(a) application, the wife must show that something occurred prior to or at the time the orders were made resulting in the exercise of judicial power miscarrying, that is, that Monteith J did not have the opportunity to exercise his judicial power properly. Events which occur after the order is made cannot provide the foundation for an order to set aside the orders of September 2004 using s 79A(1)(a).
Turning then to s 79A(1)(c), in Cawthorn & Cawthorn (1998) FLC 92-805, the husband’s financial circumstances had deteriorated after the orders were made making it impracticable for him to carry out the orders. Things he anticipated occurring, did not. The Full Court described the events as a series of misfortunes. The Court focused on the equitable principle but if the relief was sought, the applicant had to come with clean hands.
There must be evidence, therefore, to show that the applicant could not obtain the benefit of the judgment because of circumstances that she had nothing to do with and which required equity to step in and rectify the facts that made the benefit impracticable for her to obtain. In this case, the wife’s claim of inability to access the benefit, arises from her bankruptcy after the orders under s 79 were made. Albeit that the wife argues otherwise, the husband had nothing to do with her bankruptcy. The difficulty here, however, is the absence of evidence about how the bankruptcy arose.

A similar situation arose in Liu & Liu (1984) FLC 91-572. The court ordered a transfer of land be signed, and when the husband would not execute it, the Registrar of the Court was empowered to do so. However, to complete the transfer, the husband would not produce or, rather, could not produce, the certificate of title. The court was invited to reconsider the benefit that the wife was entitled to under the original order using s 79A(1)(c). Nygh J referred to the fact that the husband’s action had rendered orders nugatory.
In this case, the wife may argue that her entitlement under the 2004 order was rendered nugatory but that was not anything to do with her husband, and as I have said, to succeed, it depends on what evidence I have about how her bankruptcy came about. That becomes a relevant issue on the dismissal application.
I turn then to the issue of summary dismissal. A number of courts, including this, have looked at the basis of summary dismissal of proceedings. In respect of specific s 79A applications, in Korsky & Bright (2007) FamCA 245, Brown J referred to the principles set out by Kirby J in Linden & The Commonwealth No 2 (1996) 70 ALJR 541 where his Honour said the following:
The approach to be taken by the court to the Commonwealth's application for summary relief is not in doubt:
1.        It is a serious matter to deprive a person of access to the courts of law for it is there that the rule of law is upheld, including against government and other powerful interests. This is why relief, whether under O 26, r 18 or in the inherent jurisdiction of the court, is rarely and sparingly provided.²¹
2.        To secure such relief, the party seeking it must show that it is clear, on the face of the opponent's documents, that the opponent lacks a reasonable cause of action²² or is advancing a claim that is clearly frivolous or vexatious.²³
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.²⁴ 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.
4.        Summary relief of the kind provided for by O 26, r 18, for absence of a reasonable cause of action, is not a substitute for proceeding by way of demurrer.²⁵ If there is a serious legal question to be determined, it should ordinarily be determined at a trial for the proof of facts may sometimes assist the judicial mind to understand and apply the law that is invoked and to do so in circumstances more conducive to deciding a real case involving actual litigants rather than one determined on imagined or assumed facts.
5.        If, notwithstanding the defects of pleadings, it appears that a party may have a reasonable cause of action which it has failed to put in proper form, a court will ordinarily allow that party to reframe its pleading.²⁶ A question has arisen as to whether O 26, r 18 applies to part only of a pleading.²⁷ However, it is unnecessary in this case to consider that question because the Commonwealth's attack was upon the entirety of Mr Lindon's statement of claim.
6.        The guiding principle is, as stated in O 26, r 18(2), doing what is just. If it is clear that proceedings within the concept of the pleading under scrutiny are doomed to fail, the court should dismiss the action to protect the defendant from being further troubled, to save the plaintiff from further costs 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.
The approach of Kirby J has been the subject of discussion in a number of decisions of the Full Court of this Court. I refer specifically to Bigg & Suzi (1998) FLC 92-799, Pelerman & Pelerman (2000) FLC 037 and Beck & Beck (2004) FLC 93-181.
Finn J delivered a judgment in Custodio & Pinto and ors (2006) FLC 93-279. That was a judgment delivered on 1 September 2006. Her Honour noted that there were limitations on the material upon which an applicant for summary dismissal could rely in establishing a case for that relief. She said:
The party seeking it must show that it is clear, on the face of the opponent's documents, that the opponent lacks a reasonable cause of action or in advancing a claim that is clearly frivolous or vexatious.
Looking back at what Kirby J said and the reference by Finn J to which I have just referred, I have the advantage of one step further. I am not looking at pleadings and I am not looking at documents. I have heard the wife’s case. The wife, therefore, must show on her evidence that she has an arguable case. If she can, dismissal is inappropriate. In another jurisdiction relating to native title arguments, the High Court examined the principles relating to summary dismissal.
In Fejo & The Northern Territory (1998) HCA 58, the Court said as an opening statement:
The applications made to the primary judge (for injunction and for summary dismissal) both required consideration of the strength of the case that the appellants sought to advance. Was there a serious question to be tried? Should the proceeding be dismissed because it was doomed to fail?
That statement is a short encompass of what Kirby J was talking about.
In D’Orta-Ekenaike & Victoria Legal Aid (2005) HCA 12, their Honours again looked at the question of the principles of summary dismissal. The principle has relevance here where I have heard the wife’s case. I quote from paragraph 2 of a part of the judgment under the heading of, “Approach to the Application”. Their Honours said:
The function of a court, asked to give peremptory relief that stops proceedings in their tracks, is not a mechanical one. To prevent a party with an apparently serious claim from having a trial of that claim on its merits must not become an occasion to inflict injustice or prematurely to close the court's doors in that party's face.
Summary relief terminating an action, or ordering that it be permanently stayed, is only available where there is "no risk of injustice to the plaintiffs". Such orders are provided "only in plain and obvious cases".
In 2004, this court began its new set of rules. Rule 10.12 provides:
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.
It is that last point upon which I intend to focus from hereon in. The distinct feature of this case is that I have heard all of the wife’s evidence. She has closed her case. The evidence is, therefore, what it is. The question is whether there is evidence that:
a)clearly shows there is no prospect that a ground under s 79A is established; or
b)would not be affected by the husband being called upon to give evidence.
I turn then to the wife’s evidence. She filed an affidavit on 3 June 2004, which was about two months after separation but three months before the final orders were made, which was endorsed as having been prepared by her then solicitor. She said there were incidents of family violence during the relationship up until the time of separation. She said she had for three years made every attempt to try and talk and communicate with her husband. She said living in a remote circumstance had problems which included drought conditions but also the husband’s health. She referred to his refusal to consider leaving the farm despite the drought and its associated financial pressures.
In respect of farm activities, she said she entered details as to stock in the computer although the details to do so were given to her by the husband. She said it was possible, with the new computer, that errors were made. She acknowledged that cattle musters had occurred since 2001. I note that date is important because it was only three years before the final orders were made.
As for her own health, the wife said she had suffered from depression from time to time for approximately two and a half years but she denied being unable to cope. Importantly, no doubt in the context of a parenting dispute, she said that after separation, her health had improved and her depression did not affect her parenting capacity. There is some significance in that statement having regard to the fact that she was referring to a period of approximately two months after separation.
In the same affidavit the wife again referred to the prevailing drought. The affidavit must, therefore, be seen as encompassing not only parenting issues but also financial issues. In respect of financial matters, the wife said she wanted the assets valued because she was “uncertain as to what the equity” was. This latter point is of some significance as well, because when a property settlement is under consideration, and that was the case here, the wife acknowledged that she was a joint proprietor and mortgagor. Access to the information about the equity was, therefore, within her own grasp. The solicitor who prepared that affidavit remained her practitioner until just before the orders were made in September 2004.
That was the second affidavit that the wife had filed. In an earlier affidavit filed on 27 May 2004, so in the same time context, and which was also prepared by her solicitor, she said she had instructed the solicitor to negotiate with the husband and his solicitor about child and property issues. In relation to the livestock issues about which she said there may be some computer errors, she said that as at 1 February 2003, there were identifiable numbers. It could not be said, on any of the evidence in those two affidavits, that the wife did not have information or access to it. There could be no basis, therefore, if it was raised, to say that the husband had suppressed information or evidence about the financial position.
If the wife was pursuing values to ascertain the equity, I was not given any evidence of it. It transpired that a single expert witness was ordered by this Court, and in evidence, the wife said she was not content with what that report had said and consulted her own valuer by the name of Z. No evidence was presented from him. The single expert witness’ evidence was “corrupted” according to the wife because the husband had hidden stock from him. An aide-memoire, however, prepared by senior counsel for the husband, showed that based on the single expert witness’ evidence, the net pool of assets as at September 2004 was $259,455.
The evidence before the court from the single expert witness was filed pursuant to the order made in 2006. The relevance of it relates to the question of any miscarriage of justice. The wife consented to an order in 2004 and out of the equity of $259,455 if that evidence was ultimately accepted, she received a significant portion. It was only after the orders were made in September 2004, that the wife filed an affidavit indicating that her medical condition was such that there was no basis for the orders to have been made in the first place. It is interesting to analyse the evidence about her depression as it was described in the two affidavits to which I earlier referred, and that which she filed and prepared by herself in November 2005.
By November 2005 the wife was indicating that the depression in 2004 was “chronic”. Sequentially, after the June 2004 affidavit, the wife approached the husband to undertake mediation. Again, this has to be seen in the context of a relatively short period of time up until September 2004 when the final orders were made. Having been approached to undertake the mediation, the husband agreed. It went ahead and albeit the wife was unhappy about what was said there, she conceded an agreement was reached. That evidence is significant in relation to the issue of duress.
In an affidavit filed on 27 January 2006, the wife said that in the same period to which I earlier referred where her depression was not affecting her parenting capacity, she was ordered by Coker FM to return the child S to live in the area where the husband lived.
The wife appealed against the Federal Magistrate’s order and in August 2004, Warnick J sitting as a Full Court of this Court, dismissed her appeal. Despite that, the wife did not return to the district where the husband was living. At that time, only weeks before the September 2004 orders, she had a lawyer acting for her and it appears they fell out. Despite that she continued to have him act for her.
In August 2004, a mediation occurred and the wife was still represented by the same solicitor. The wife attended the mediation. It is questionable whether anything said in that mediation could be admissible but I note that the wife swore an affidavit prepared by solicitors for some proceedings in the Supreme Court of Queensland in September 2005. It is hard to ignore that affidavit because it was placed on the public record in the Supreme Court.
In essence, what the wife told the Supreme Court was that she was told that if she wanted to have S live with her, she had to give up her interest in the farm. What she said in her affidavit filed in this court on 26 January 2006, however, was that in return for the settlement of $200,000 she got “residency” of S and the husband would “revoke” his contravention application relating to her failure to return S to the relevant district.
A careful analysis of those two statements shows that they are distinctly different. A careful analysis also shows that it was the wife’s own prepared affidavit in January 2006 that is less complimentary of the position she is now adopting than that which was prepared by solicitors for the Supreme Court proceedings. I give that significant weight. The notation to the ultimate final order, in the parties’ own words, stated that they intended to create a loving home and family situation for their two children and that S had the right to decide which parent she wished to reside with at the end of each school term.
The wife’s evidence in her 2006 affidavit was that she was suffering from a lack of money but even on her evidence, the capital from the husband was going to be paid by instalments. As for the period after the mediation and leading up to the orders being made, the wife said the following, at paragraph 66:
The next Court hearing was set down for September 10, 2004, in Townsville. As I had no money, [the husband] paid for my travel expenses from [the Sunshine Coast] to Townsville and accommodation while there. I asked for independent legal advice; I obtained the telephone number of a friend’s brother who was a solicitor in Townsville, a Mr Leon Pommer, but he said he was too busy to help me.
In paragraph 67:
Running out of time and not knowing I could ask to have the matter adjourned, I accepted the services of [the husband’s] solicitor’s town agent, a Ms Sandra Lindsay. I was therefore not separately represented. Ms Lindsay took the “Mediation Agreement” prepared by the Lifeline mediator as a starting point. [The husband] insisted on having several points included, such as [S] having the “right to choose” which parent she could live with. The document was prepared in a hurry, in a room outside the Court, while the Family Court judge waited. No provision was made in the document for me to have contact with [the child T]. Several items were handwritten in the document by Ms Lindsay, on [the husband’s] dictation.
The wife conceded in evidence that she had access to her solicitor by telephone. None of the evidence to which I have just referred suggests duress in the sense that I earlier mentioned. The wife then said, at paragraph 68:
The next month, October 2004, I asked the local ([Sunshine Coast]) solicitor, Sharon Fairlie, to act for me. She asked barrister Steve Gutteridge for an assessment of the situation and arranged for Legal Aid to assist me.
Notwithstanding that statement, no action under s 79A was taken until October 2005 and it is apparent from the evidence that it was a condition of the orders of the Supreme Court that the wife was obliged to file the relevant s 79A application in this Court. There is considerable significance in all of that, however, because on the wife’s own evidence there were parenting proceedings on foot from early 2005 onwards. No suggestion was raised during that time of any application to set aside the property orders. In respect of her lack of legal representation at the mediation, its aftermath and the hearing before Monteith J, two important things need to be contemplated: First, the wife conceded that she had access to her solicitor. It has never been suggested by the wife that she would call evidence from her solicitor, Mr Dempster to show she was distressed, shocked or under any disadvantage. She certainly said she would call the husband’s solicitor who appeared before Monteith J but that would have apparently been for the purposes of some sort of cross-examination. The wife had not sought any proof of evidence from Ms Lindsay, approached her to give evidence or, I suspect, contemplated the problem of legal professional privilege. Secondly, the wife had the opportunity in the days after the mediation to have input into the orders that were sought. Some discussion might have taken place about the orders before Monteith J that might have shed some light on her assertions of duress, distress or shock but she declined to produce the transcript which she acknowledged she had.
As such, the absence of legal representation at the mediation, the drafting of the orders and the appearance before Monteith J could not be used in this case to assert an absence of true consent to the orders. I raise this issue only because of the earlier reference to the miscarriage of justice and the need to consider whether the process of making of the orders somehow vitiated her consent.
At the commencement of this hearing last Tuesday, the wife handed to the court a document which she said that she wanted to put into evidence but which, at its highest, could only be construed as a submission. Over opposition from counsel for the husband, I have read that submission. Because the wife was unrepresented and made no meaningful submission in reply to the husband’s dismissal application, I have examined the written document carefully to see if there anything in that that might assist the wife.
It is written in the third person but I propose to read directly from it some of the parts that may have some relevance to the s 79A application. And I quote:
The marital relationship, over 32 years was abusive to the wife, both emotionally and physically.
A power in-balance was established very early in the marriage in favour of the husband.
…
Particularly in the five years prior to separation on 1 May 2004, the wife was in a parlous emotional state and in no way fit to make determinations about her own affairs. She was, variously:
Clinically diagnosed and under medical treatment for depression
Suicidal
Overworked and, much of the time, exhausted
Isolated on a remote property
Denied by the husband any capacity to visit her family or friends elsewhere, in fact, even talking to people on the telephone invoked disapproving paranoia in him
Demeaned incessantly and occasionally assaulted by him in front of their children such as to destroy any respect or authority she had from and with her on children.
I presume the expression, “on children” means “own children.” She goes on to say:
She feared him, had no self-esteem or self-determinism left and in the end came to despise him, in particular for his emotional brutality.
I stop here to point out that save for the issue about depression, the evidence does not support those assertions. She goes on:
On appeal, she had removed the order stating that if she did not return to the area to live, she would lose residence of the young daughter she at all costs wanted to save from the detriment of living with the husband. He continued to harass her by telephone and in person about her being in [contempt] of court, saying he would inevitably end up getting Residence of the daughter unless she moved back to [H] near to him. This was a frightful prospect continually thrust at her by him.
This assertion too was not supported by the evidence. She goes on:
Upon separation she had no money and Centrelink would give her none as there were substantial marital assets, however, he controlled them all. She had never even been allowed to write a cheque…She initially had nowhere to live and was dependent on ad hoc charity to survive and feed her daughter for four months leading up to September 2004.

Whilst evidence was led about her parlous financial state, it must be remembered that there were proceedings on foot during that period. Statements, therefore, have a hollow ring about them. The submission goes on:
She was naïve about legal processes (having only once before been in a court, and that as a witness) such that she had no capacity to reasonably represent herself. Concurrently, her solicitor abandoned her two days before the hearing on 10/09/04.
In cross-examination the wife’s evidence was that she rang Mr Dempster and she thought there was a discussion but she then added that she felt blackmailed, not by Mr Dempster, but by the court processes. The submission then reads:
In the weeks leading up to the September 2004 hearing, her own solicitor continually harassed her to comply with the order requiring her to move back to the outback. This included him booking flights to get her there which, out of a feeling of personal dread, she twice cancelled. She felt trapped and unable to survive personally if she did went back as ordered and unable to save her daughter from a horrible future if she did. Her own solicitor and her husband were (between them), telephoning and telling her approximately daily for weeks, that she must go back. The husband said she was in contempt of court and would be punished if she did not. The court order said she would lose her daughter if she did not. She felt that she would rather die than go back or lose her daughter to suffer from the husband what she had suffered at his hands.
The evidence does not support that. In cross-examination, the wife said that she had never questioned the standard of her solicitor’s advice. The submission then says the following:
…The husband told her that she must agree to his terms or he would take the daughter from her.
The evidence does not support that conclusion. The submission then says:
He told her that only if she agreed to accept the money offered by him during the so called mediation, he would allow her to have residence of [S]. She believed him when he threatened her that he would never cease hounding her with the best lawyers and court ordered punishments and take [S] away if she did not acquiesce to his demands. She was reduced to acquiescence, thinking it was the only way to keep [S] and get some peace; get him out of her face and out of her life.
I refer back to the evidence of her own affidavit and as to the different position she put before the Supreme Court of Queensland. I could not find on the evidence that there is any basis for the assertion that I have just referred to. The assertion then goes on:
She knew he was offering him far too little –
and by that, I presume she meant “her” rather than “him”:
far too little of the marital property, but felt the court had betrayed her, he would never stop harassing her and her own solicitor had not only failed to take her side, but had actively joined his.
That statement is completely inconsistent with her own evidence about the fact that she had never questioned the standard of her solicitor’s advice and that she had access to him, not withstanding he was not present at the court. The knowledge that she would have the court accept by that submission was never raised and I find the assertion about the solicitor scurrilous. The submission then goes on:
She participated in mediation hoping to resolve all issues of contention and maintain at least speaking civility between them for the sake of future relations in the children’s best interest. He commandeered the process completely, she had no real chance to participate and he decreed what would happen. His domineering manner created the situation wherein it seemed to her that even he even controlled the mediator and told him what would happen.
A few lines later the wife’s submission said:
The husband, appearing to be nice, mere days before, offered to pay for her airfare and accommodation in Townsville. She was utterly broke and could not otherwise get there and acquiesced. She said she wanted a solicitor. He said he would arrange it but did not.
Again, none of the evidence throughout 2005 or 2006 could come anywhere near supporting those assertions. The submission then went on to say the following:
At court, the wife was confronted with a new town agent of his.
Presumably meaning the husband:
She did not even know what the hearing was about, other than it was something to do with the children and this had been conveyed to her verbally.
In respect of this assertion, as I earlier mentioned, the wife declined to produce the transcript before Monteith J. She then said:
She had no notice or knowledge that property matters were on the agenda.
A few lines later:
…Certainly, no one on the wife’s side knew that any such matters were listed that day. Her solicitor, who was still on the record for her did not. He did not ensure she had representation, but wrote to the judge two days beforehand, alleging she had chosen to represent herself in the child matters. In fact, he had refused to do so. He did not deny that he was on the record for property matters, specifically implying that he soon may not be, but stating that he awaited clarification about his representing on the non child issues.
Again, I reject all of those assertions as unsupported by any evidence either tendered in this court in 2004, 2005, 2006 or now. The wife then said:
She was coerced in hurried discussions in an anteroom to sign so called consent orders. The husband, in front of the town agent told the wife (and she believed) that his town agent was there for both of them. She, of course, was representing him alone, but the wife did not understand this.
I do not know who Ms Lindsay announced as her clients and the transcript may have clarified that. I do have the benefit of an order which clearly shows that Ms Lindsay was representing the husband, and the wife was unrepresented. Again, the wife declined to tender the transcript. Without that transcript I must conclude that Monteith J as a matter of law found the orders to be just and equitable.
The submission then finally said:
The court was misled by the husband. He had rendered widely varying estimates and sworn estimates of the values involved in the marital pool.
Whatever may have been the statements of the husband, the wife had legal representation and was aware of the assets. I have earlier referred to those matters. Nothing in the court process here appears to be unusual.
The submission then said the judge did not know about, but had a duty to
(1)inquire whether the wife had received considered legal advice about such a property settlement as presented on the day;
(2)inquire as to why neither her solicitor nor a town agent was there regarding property matters;
(3)read any financial statements filed along with any applications or other documents touching on property issues and ask the wife why she was now resiling from her only filed document regarding property;
(4)satisfy himself that the property orders were actually equitable;
(5)satisfy himself that the children’s orders were appropriate;
(6)satisfy himself that there were no circumstances of duress, let alone the blackmail the husband was that day contriving to place on the wife;
and in the absence of being satisfied on all of the above issues, should have declined to make orders and should have adjourned the further hearing of any property matter.
I reiterate that these assertions are not supported by the evidence. The wife’s document then refers to what follows as a commentary. It looks at figures of matters where no evidence was called. I have been directed to the evidence of the single expert witness. As such, these figures do not assist the wife. They are meaningless. The rest of the document is repetitive and, as the wife describes it herself, “commentary”.
In respect therefore of the assertion under s 79A that there has been a miscarriage of justice by any of the possible grounds under 1(a), I could not find that there is any evidence that supports it and, as such, on that ground the husband must succeed because the wife’s claim is doomed to fail.
I turn then to the second assertion relating to the possible grounds under s 79A(1)(c).
The only evidence presented by the wife or alluded to was in her document headed, “List of Affidavits”, relating to a default by the husband concerns his non-payment of instalments under the 2004 orders. However, it is the circumstances that have arisen as a result of the default that must give rise to a fairness requirement to vary or set aside the order.
Even if such a finding could be made, the court still has a discretion. No evidence was produced about the wife’s bankruptcy petition, the extent of the bankruptcy estate or what steps the wife took to avoid and/or discharge her bankruptcy order. I do not know, for example, whether the wife made an arrangement or sought one to pay out the creditors through an agreement to pursue the husband for what was owed to her estate. I do not know whether the entitlement of the wife in the 2004 order would have exceeded her creditors’ claim such that the bankruptcy could have been annulled.
I know nothing about those matters, save that the solicitor for the trustee-in-bankruptcy has appeared and made clear that any entitlement of the wife arising out of the 2004 orders is vested in the trustee. Any order hereafter would be pursued accordingly by the trustee, even if it was appropriate to vary the order to achieve what the wife consented to in 2004.
It is difficult therefore to see – and there is no evidence before me about this – how the wife could argue that her bankruptcy, and hence her loss of entitlement to the fruits of the 2004 order, is a result of the husband’s default. Even if there was, it is hard to see a court being entitled to do more than ensure that what was intended in 2004 be carried out. That is not what the wife sought.
If the end result of that was that the wife would not benefit, it would be unlikely for the order to be made.
It is also important to remember that the wife must have known she had obligation to pay her legal fees, and I have presumed that those would have been coming out of the fruits of the 2004 orders because she maintained she otherwise had no money. There is no suggestion that the wife was eligible for legal aid and I presume, because her solicitor sued her, that that was the case.
The application for dismissal in relation to this particular ground requires consideration of whether there is any case, let alone a weak one. This is not a case in which the wife has been deprived of access to the courts. For the reasons earlier mentioned, she has had a number of opportunities to prepare and present evidence. Nothing suggests that the wife would put any evidence before the court to enable me to make a finding that she has a cause of action under s 79A(1)(c).
For that reason, the husband must succeed in his application for dismissal.
I formally find therefore that on the facts relied upon by the wife, she cannot establish a miscarriage of justice by any reason of any of the circumstances required for the purposes of s 79A. The court should accordingly dismiss her application now to avoid the husband being involved in further litigation and to avoid the husband incurring further costs. A continuation of the proceedings into evidence from the husband would not see any beneficial outcome for the wife.
Accordingly, I can concede that the husband’s application is appropriate and the wife’s application under s 79A must be dismissed.
In addition to the application for summary dismissal, the husband also sought orders for costs and an order that I make a declaration under s 118 that the wife not be able to bring proceedings in the future without an application being made and leave being give by the court.
First, in relation to costs, I could not make an order for costs without hearing submissions on all of the matters required to satisfy s 117. I had intended to do that this morning, but there are two problems. The first is that the wife is not here. She had an opportunity last night to make submissions in response to that of senior counsel for the husband, but for reasons which are not at all clear, she continued her mantra that she was not able to do so because she did not have legal representation. I reject that, but it seems to me, having regard to the fact that I have now found that her application was doomed to fail, the costs application can be made.
The second issue is that the solicitor for the trustee-in-bankruptcy is not here and probably should be heard on that issue before any further consideration is made to an order.
I therefore propose to stand the matter down for the solicitor for the trustee to be given an opportunity to be heard. It may also be that, having regard to the absence of the wife, I consider giving her a period of seven days to respond to the application for costs. It seems, however in the circumstances, it may be a futile or academic exercise.
In respect of s 118 however, the court may, at any stage of the proceedings, make orders to dismiss the proceedings and, if appropriate, order a party who instituted those proceedings be not at liberty to institute future proceedings under the Family Law Act 1975 (Cth) without leave. However, the court must first be satisfied that the proceedings before the court are frivolous or vexatious and then dismiss them.
I could not find the proceedings in this case to be frivolous or vexatious, but I have little doubt that the wife’s approach is misguided. There was considerable submission put to me yesterday afternoon by senior counsel for the husband about the fact that that misguided approach has come from the wife’s apparent assistance from Mr B. There is no evidence that would enable me to make that finding, although there is a very strong submission being put by senior counsel for the husband that that is so.
It is not at all clear in my mind whether it is the wife who is acting frivolously or vexatiously or simply acting as a puppet of Mr B. I do not know. Under those circumstances, it would not be appropriate for me to exercise the powers set out in s 118.
Under those circumstances, I decline to make that order. Having said that, however, the purpose behind the provision is to prevent unnecessary involvement by another party in proceedings. These orders conclude the litigation between the husband and the wife. Any future application can be assessed on its merits and the risk then of them being frivolous or vexatious might be more carefully considered.
I have considered carefully that the wife has asserted on a number of occasions over the last few days that she still has an application against the husband in relation to contempt of orders. It would seem to me that if I made an order under s 118, it may have some bearing on her right to bring those proceedings. Whether she can bring those proceedings is a moot point in any event, but having regard to the fact that this is not a matter in which I can make a finding about her action being frivolous or vexatious, I simply decline to make the order.

I certify that the preceding ninety eight (98) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate:
Date: 21 May 2010

[2010] FamCA 395

29 April 2010

Key Legal Topics

Areas of Law

Family Law

Civil Procedure

Legal Concepts

Injunction

Costs

Appeal

Jurisdiction