Beck & Beck

[2004] FamCA 92

[2004] FamCA 92

FAMILY LAW ACT 1975

IN THE FULL COURT  Appeal Nos. WA3L of 2002

OF THE FAMILY COURT OF AUSTRALIA  and WA8L of 2002
AT PERTH  File No. PT 5888 of 1995

BETWEEN:

DEANN BEVERLEY BECK

Applicant/Appellant Wife

- and -

CEDRIC RICHARD PALMER BECK

Respondent Husband

REASONS FOR JUDGMENT OF THE FULL COURT

BEFORE:  Ellis, Finn and Chisholm JJ

DATE OF HEARING:                   2 July 2003

DATE OF JUDGMENT:               25 February 2004

APPEARANCES:

Mr Hooper of Counsel (instructed by Summers Partners, Level 3, 190 St Georges Terrace, Perth WA 6000) appeared on behalf of the applicant/appellant wife.

Dr Dickey of Queen’s Counsel (instructed by the Paterson & Dowding, 2^nd Floor, BGC Centre, 28 The Esplanade, Perth WA 6000) appeared on behalf of the respondent husband.

APPEAL SUMMARY

MATTER:BECK and BECK

APPEAL NUMBER:              WA 3L of 2002 and 8L of 2002  (PT 5888 of 1995)

CORAM:Ellis, Finn and Chisholm JJ

DATE OF HEARING:           2 July 2003

DATE OF JUDGMENT:     25 February 2004

CATCHWORDS: FAMILY LAW – APPEALS – Leave to appeal from summary dismissal of wife’s application under s 79A of Family Law Act 1975 – Principles governing summary dismissal of s 79A application – In determining an application for summary dismissal, regard should only be had to the material of the respondent to that application – Trial Judge erred in having regard to the material of the applicant for summary dismissal – Leave to appeal granted – Appeal allowed

FAMILY LAW – APPEALS – SUBPOENA – Appeal not argued – Appeal dismissed.

Caselaw cited:

Bigg v Suzi (1998) FLC 92-799
Pelerman v Pelerman (2000) FLC 93-037
Webster v Lampard (1993) 117 CLR 598
Lindon v The Commonwealth (No 2)  (1996) ALJR 541

WA3L of 2002:
Appeal dismissed (appeal not argued).
WA8L of 2002:
Leave to Appeal granted.
Appeal allowed.  Orders set aside.  Application for summary dismissal remitted for re-hearing. 
Directions made for the filing of written submissions as to costs of both appeals.

REPORTABLE

APPLICATION FOR LEAVE TO APPEAL NO. WA8L 

Introduction

1. This is an application by the wife for leave to appeal, and if leave is granted, an appeal against an order made by Holden J on 8 November 2002. The effect of that order was to dismiss on a summary basis part of an application by the wife under s 79A(1) of the Family Law Act 1975 (“the Act”) for the variation of a property settlement order made by consent on 8 March 1996. Section 79A(1) provides as follows:

   “(1) Where, on application by a person affected by an order made by a court under section 79 in proceedings with respect to the property of the parties to a marriage or either of them, 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

   (b) in the circumstances that have arisen since the order was made it…