Bersce and Bersce

[2011] FamCA 18

FAMILY COURT OF AUSTRALIA

BERSCE & BERSCE [2011] FamCA 18

FAMILY LAW – PRACTICE AND PROCEDURE – Summary dismissal – Weak case by respondent but some prospect

Family Law Act 1975 (Cth)

Lindon v Commonwealth of Australia (No 2) (1996) 136 ALR 251

APPLICANT: Ms Bersce

RESPONDENT: Mr Bersce

FILE NUMBER: MLC 6179 of 2010

DATE DELIVERED: 18 JANUARY 2011

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: THE HONOURABLE JUSTICE CRONIN

HEARING DATE: 13 JANUARY 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: MR HALL

SOLICITOR FOR THE APPLICANT: ROBINSON GILL

COUNSEL FOR THE RESPONDENT: MR HANNON

SOLICITOR FOR THE RESPONDENT: WESTMINSTER LAWYERS

Orders

1. That all interim applications are dismissed.

2. That the substantive final applications of both parties be listed for the first day of hearing before me at 10.00am on 1 April 2011.

3. That the question of the costs of both parties of this day be reserved to the trial.

AND THE COURT NOTES

A.That the attention of the parties and their legal practitioners is drawn to the document relating to the first day of trial.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 6179  of 2010

MS BERSCE

Applicant

And

MR BERSCE

Respondent

REASONS FOR JUDGMENT

1. On 6 May 2005 with both parties represented by counsel, Mushin J made final property orders.

2. One of the orders made in 2005 was that the property at G be sold and the net proceeds be divided equally between the parties save that an adjustment be made from the husband’s share relating to his superannuation entitlements.

3. It was common ground between the parties that the husband did not pursue compliance with that order until early 2010.

4. In July 2010, the wife sought to set aside the 2005 orders pursuant to s 79A of the Family Law Act 1975 (Cth) (“the Act”). By that time, the husband was pressing personally and through solicitors, for the sale of the property and the wife was resisting.

5. The wife’s application was supported by an affidavit which ran to 94 paragraphs supported by a significant number of annexures.  It came on for hearing before me in the Judicial Duty List on 9 November 2010 at which time, the wife was unrepresented.  The husband appeared by counsel.

6. The husband’s response to the wife’s application was to seek a dismissal of the application but also enforcement of the 2005 orders. 

7. After discussion, it became apparent that the husband was arguing that the wife had no prospect of success on the material she had filed.  The proceedings were adjourned to enable a proper application for summary dismissal to be filed by the husband.

8. On 11 January 2011, the husband filed an amended response to the wife’s application seeking a summary dismissal.

9. In the hearing before me on 13 January 2011, both parties were represented by counsel.  Notwithstanding the agreed general view that a summary dismissal application would normally be dealt with on the basis of the evidence of the respondent to that application, it was agreed that I should have access to all material filed by the parties but also allow limited cross-examination.

10. Rule 10.12 of the Family Law Rules 2004 provides that a party may apply for summary orders that in respect of the opponent’s application, there is no reasonable likelihood of success.

11. The authority which has stood the test of time is the judgment of Kirby J in Lindon v Commonwealth of Australia (No 2) (1996) 136 ALR 251. There, his Honour made a number of observations about the approach which should be taken to an application for summary relief. His Honour said that it was a serious matter to deprive a person of access to the courts of law and that the sort of relief sought was “rarely and sparingly” provided.

12. Kirby J went on to say:

    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 action or is advancing a claim that is clearly frivolous or vexatious.

    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.  Even a weak case is entitled to the time of the 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.

13. I am conscious therefore that the husband needs to establish that on the wife’s material, there is no reasonable likelihood of success of her application under s 79A of the Act. The determination of that application is primarily but not entirely, on the documents of the wife. In circumstances where the case of the wife appears weak, that is not by itself, sufficient to warrant summary termination.

14. The wife’s evidence was predominantly that the husband had left the property in her control and had not enforced the 2005 orders.  The wife surmised that the husband’s “continuing silence” along with the fact that he paid her legal fees in September 2006, was a “recognition” by him that he had not disclosed all of his assets at trial and as such, an acknowledgement by him of her entitlement to retain the property.  There is little logic in that argument.  That may justify a refusal of the court to exercise its discretion to enforce its orders.

15. The husband’s evidence which was not challenged, was that he delayed enforcing the orders because his daughter was pregnant and due to have a baby and that there were then problems for his daughter including the breakdown of her relationship and the illness of the then-born child.  The husband said that when all of these problems were overcome, he then began to pursue the sale of the property.  He said that in August or September 2007, he approached the Monash-Oakleigh Legal Service and had them draft a loan agreement relating to the wife’s legal fees which he had paid.  A copy of the agreement was attached to the husband’s affidavit.  In cross-examination, the wife said she had never seen it before receiving the affidavit.

16. In her July 2010 affidavit, the wife said that the husband had failed to disclose a 30 year old investment and she believed he kept money hidden and added it to his superannuation enabling him to purchase his present house some months after the final orders were made in 2005.  The wife surmised that based upon what the husband disclosed in 2005, including the payment of her legal fees, he could not have afforded to do what he did.  The husband however gave evidence explaining the financial intricacies and I have no reason to doubt the accuracy of the information he provided.

17. When the wife filed her second affidavit on 17 December 2010, she argued that an inference should be drawn from the fact that the husband could not have afforded to do what he did.  I am satisfied on the evidence that the husband has explained how he managed to provide the necessary funds.  It would appear that the wife’s evidence was selective and did not advance her argument.

18. A number of matters became evident from cross-examination.  Leading up to the making of the final orders, the wife was represented by lawyers. At the hearing in 2005 before Mushin J, she was represented by counsel.  In her evidence before me, the wife described the husband as a liar.  She said that some seven years ago, he had about $90,000 in a bank account and had withdrawn it.  The money disappeared.  She said the lawyers in 2005 were unable to explain what happened to the money.  Despite all of that and her belief about the credibility of the husband, the wife still settled.  In her affidavit filed in July 2010, the wife enclosed a copy of the 2005 affidavit material that she filed.  She disclosed an asset position totalling $839,270 and asserted various sources of income.

19. In detail, the wife set out in her 2005 affidavit material a raft of bank accounts showing precise amounts and dates.  It was abundantly clear that in 2005, significant investigation had been undertaken by the wife or her advisors. 

20. Paragraph 3 of the affidavit of the wife filed 17 December 2010 set out the ground under s 79A of the Act upon which she was relying. She said there had been a miscarriage of justice by reason of the husband’s failure to disclose relevant information. In particular, she said, the husband failed to disclose funds held by him and claims he had made for compensation at the time that the orders were made in May 2005.

21. In cross-examination, counsel for the wife pursued the question of compensation.  The husband was quite clear on the monies that he had received.  There was no basis for me to find that the husband was misleading me or was inaccurate in relation to what he said about compensation.  No specific matters were put to the husband to indicate that the wife was aware of other compensation payments.

22. In respect of funds, the gravamen of the wife’s claim related to the $90,000 to which I earlier referred.  The evidence of the wife took the matter no further. 

23. The wife relied upon an affidavit of her daughter.  I permitted limited cross-examination by counsel for the husband of the daughter.  This witness said that her father had pursued her in 2009 to the point of harassment about being a signatory on an account with the National Australia Bank.  She said he told her that he wanted her to be able to sign on the account in the event of his death because he did not want the money going to the “National Trust”.  All of that evidence was disputed by the husband.  However, the parties’ daughter went on to say that when she got to the Bank, she discovered a name as the owner of the account that she did not know.  Despite her reticence, she then signed the necessary documents.  The Bank’s documents were produced pursuant to a subpoena.  Those records admitted by both parties showed the daughter and the husband simply as signatories who could each act alone.  They showed that the apparent due diligence had been undertaken by the Bank in respect of the identification of the owner and signatories.  The daughter confirmed that the Bank required her to produce her passport, Medibank card and licence.  I conclude therefore on the presumption of regularity that the Bank had been satisfied as to the name and identity of the owner of the account.  They must also have been satisfied as to the name and identity of the husband.

24. The daughter’s evidence was that notwithstanding what she was told, she believed that the money was that of the husband and that it related to past transactions.  When I inquired as to how she formed that belief, she said she had been investigating the husband’s financial dealing since she was a little girl.  Having regard to the nature of the evidence and the fact that the relationship between the husband and the daughter has broken down, I am not at all comfortable about the nature of her evidence and I find that she is very much a partisan witness for her mother.

25. Be that as it may, there is evidence albeit significantly disputed by the husband, which might tend to suggest if proved, that there was an account going back some years prior to the 2005 orders to which the wife had referred and which had not been disclosed by the husband when the orders were made. 

26. The task of the Court on a summary dismissal application is to determine whether the applicant has no reasonable likelihood of success.  I am mindful of the words of Kirby J that even a weak case warrants the opportunity to be litigated. 

27. Notwithstanding the orders that I made in November 2010 about preparation for this hearing, there was no evidence by the wife about the nature of the investigation undertaken in 2005 by her lawyers nor what inquiries she made about this missing account bearing in mind her comprehensive evidence in 2005 about the nature of the husband’s banking.  There was no evidence before me about the advice that the wife was given by her lawyers in circumstances where she asserted that they advised her she could not prove the existence of the money.  No evidence was presented as to the nature of the investigations undertaken with the banks nor what interrogation process or discovery inquiries were made of the husband. 

28. Accordingly, despite the fact that the husband has provided a clear picture of how he managed to acquire the assets that he did after 2005, the wife asserts and also asserted in 2005, there were other assets which the husband had not disclosed.  I am very troubled about the fact that she described the husband as a liar and yet settled in 2005 but that may be because the husband had at 2005, sufficiently covered his tracks.  If the evidence of the daughter is ultimately accepted and full inquiries are made, it may be that those funds are comprehensively traceable to a period of time prior to 2005 and are proved to be owned by the husband rather than the gentleman who he says is the owner. 

29. It is a very fine line, but I could not be satisfied on the evidence that after a preliminary hearing, the wife has no reasonable likelihood of success.  The husband’s application must therefore fail.

I certify that the preceding Twenty Nine (29) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 18 January 2011.

Associate: 

Date:  18 January 2011