Brandt & Brandt
[2023] FedCFamC2F 1303
•13 July 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Brandt & Brandt [2023] FedCFamC2F 1303
File number(s): SYC 5293 of 2022 Judgment of: JUDGE STREET Date of judgment: 13 July 2023 Catchwords: FAMILY LAW – PROPERTY – alleged duress – earlier final order - summary dismissal - costs Legislation: Family Law Act 1975 (Cth)
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)
Cases cited: Abistatos v RTA of NSW [2006] HCA 27
Agar v Hyde [2000] HCA 41
Burton v Shire of Bansdale (1908) 7 CLR 76
Dyson v A-G [1911] 1 KB 410
General Steel Industries Inc v Cmr for Railways [1964] HCA 69Spencer v Commonwealth of Australia [2010] HCA 28
Webster v Lampard [1993] HCA 57
Division: Division 2 Family Law Number of paragraphs: 41 Date of hearing: 13 July 2023 Place: Sydney Counsel for the Applicant: Mr D Eardley Solicitor for the Applicant: Stewart Law Pty Ltd Counsel for the Respondent: Mr N Allan Solicitor for the Respondent: Ziman & Ziman Solicitors Counsel for the Independent Children’s Lawyer: Mr A Spencer Solicitor for the Independent Children’s Lawyer: Matthew Folbigg Pty Ltd ORDERS
SYC 5293 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR BRANDT
Applicant
AND: MS BRANDT
First Respondent
MR COULSON
Second Respondent
ORDER MADE BY:
JUDGE STREET
DATE OF ORDER:
13 JULY 2023
THE COURT ORDERS THAT:
1.Leave is granted to the applicant to discontinue proceedings against the second respondent with no orders as to costs.
2.The proceedings are summarily dismissed under s 45A of the Family Law Act 1975 (Cth).
3.The applicant pay the first respondent’s costs fixed in the amount of $10,000.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
JUDGE STREET
These proceedings were commenced on 1 August 2022 in which the applicant seeks to bring an application asking for orders under s 79A in Part VIII of the Family Law Act1975 (Cth) (“The Act”), effectively seeking to re-agitate earlier proceedings commenced in 2013 that have been finalised.
The Court made order on 28 April 2023 fixing the matter for hearing today relating to the summary dismissal application raised in the response by the first applicant. At the commencement of the hearing, leave was given to the applicant to discontinue proceedings against the second respondent.
Mr Allan on behalf of the respondent submitted that the proceedings had no reasonable prospect of success and should be summarily dismissed. Mr Allan in that regard identified the limited nature of the evidence that had been put on by the applicant and that the only potential paragraph identifying an issue of fact permitting the bringing of an application might be that of duress. Mr Allan also identified the ultimate need in respect of the making of orders that there has been a miscarriage of justice.
Mr Allan relied upon his case outline, which, relevantly, as follows sought that:
(1)The application should be summarily dismissed against the first respondent.
(2)The applicant should pay the first respondent’s costs.
(3)The costs in orders 2 are to be fixed in the sum of $20,114.
Mr Allan put to the Court two issues in dispute, which are as follows:
(1)Whether the application against the first respondent be summarily dismissed.
(2)If it should not be summarily dismissed, whether the applicant should provide security for the first respondent’s costs.
Mr Allan outlined the contentions in respect of the applicant’s desired relief from prior consent orders. Mr Allan made reference to r 10.13 of the Rules and s 79A of the Family Law Act stating that neither rule nor section could provide the applicant with relief. Mr Allan guided the Court through the particular criteria that is to be met for relief to be granted under s79A of the Act and concluded that no miscarriage of justice could be shown. Mr Allan asserted to the Court that the ‘pressure’ that the applicant says he felt before entering consent orders is well short of the duress that must be shown and further, a mere dissatisfaction with orders years after the event does not create a miscarriage of justice.
Mr Allan made further assertions on the costs portion of the proceedings, stating that the Court is justified in summarily dismissing the application due to the unlikely prospects of success as well as the applicant not having paid the first respondent a substantial portion of the property settlement that had been agreed to. Mr Allan stressed the importance of avoiding injustice on costs and that the first respondent should not have to incur further legal fees.
Mr Eardley for the applicant, directed the court to r 10.09(c) and r10.09(d) in the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) as they relate to summary dismissal of proceedings.
Mr Eardley asserted that every Court has the power to control its own proceedings and to procedure, making reference to Abistatos v RTA of NSW (2006) 227 ALR 425; [2006] HCA 27. Counsel for the applicant asserted that if the Court would find that the initiating application raises no reasonable cause of action, it would be struck out. Making reference to the matters of Dyson v A-G [1911] 1 KB 410 and, Burton v Shire of Bansdale (1908) 7 CLR 76, Mr Eardley noted that the power to strike out generally should not be exercised where there is a real issue to be tried or whether or not there is one of fact or law. It was asserted by Mr Eardley that it is well-established that the power to dismiss a claim because it discloses no reasonable cause of action will not lightly be exercised, making reference to General Steel Industries Inc v Cmr for Railways [1964] HCA 69; (1964) 112 CLR 125 at 128-130; Webster v Lampard [1993] HCA 57; (1993) 177 CLR 598 at 602- 603.
Mr Eardley noted the observations of Gaudron, Mc Hugh, Gummow and Hayne JJ in Agar v Hyde [2000] HCA 41; (2000) 201 CLR 552 at [57],
"Ordinarily, a party is not to be denied the opportunity to place his or her case before the court in the ordinary way, and after taking advantage of the usual interlocutory processes.The test to be applied has been expressed in various ways, but all of the verbal formulae which have been used are intended to describe a high degree of certainty about the ultimate outcome of the proceeding if it were allowed to go to trial in the ordinary way." (footnote omitted).
There was a further issue raised for security for costs if the summary dismissal application was unsuccessful as identified in Mr Allan’s submissions and the response to the same by Mr Eardley.
In accordance with Spencer v Commonwealth of Australia [2010] HCA 28 the Court must exercise considerable caution in determining whether or not there is any arguable issue of fact or law. The Court takes into account that caution in turning to determine whether there is any arguable issue of fact or law in the present case.
The applicant identified that he was the first respondent in the 2013 proceedings and that the first respondent was the applicant in those proceedings. The applicant identifies that these proceedings concern orders made in the 2013 proceedings, first, on 10 May 2016 and, second, on 12 July 2019.
The applicant affidavit identified those orders were annexed to the affidavit of Mr D, being annexures A and B. While that affidavit was not read, the Court will treat the orders that were annexures A and B identified by the applicant in paragraph 8 as being in evidence before the Court and will collectively be marked exhibit C.
The applicant deposed to the circumstances surrounding the orders made in 2016, by referring to various property and identified that he was under a significant amount of stress and pressure while the orders were being settled.
The reference to “stress and pressure” in the first sentence of paragraph 12 falls well short of identifying operative duress in relation to the making of the orders. The applicant continued that he did not have financial resources to retain a solicitor, and that also falls well short of identifying duress of the kind falling within s 79A of The Act.
The applicant refers to a threat of criminal prosecution from the trustee of his bankrupt estate. The applicant does not explain how or why there was a threat in respect of his bankrupt estate. The applicant had statutory obligations that required him to complete a report as to affairs and cooperate with the trustee. The applicant has not chosen to descend into identifying what it is that was his failure that gave rise to complaint by the trustee of the bankrupt estate. The sentence of itself falls well short of identifying operative distress upon the applicant in relation to the making of the orders of 2016. Further, the applicant simply identified that that issue raised by the trustee caused him great distress. Again, the reference to “distress” falls well short of facts to support a factual issue capable of supporting there being an arguable case that this Court should permit to be agitated.
The applicant then made reference to, in addition, threats to his wife by his former wife, now the first respondent in this case. The applicant again had not descended into any factual identification of timing, nature, date of particular events so as to identify how any such threats could be said to have had some operative effect upon him in relation to the making of the orders of 2016. The assertion of threats to his other wife by the first respondent falls well short of identifying any operative distress capable of identifying an arguable issue under s 79A of The Act.
The applicant refers to the engagement from his former wife with his then wife as causing him great distress and compounding the general level of stress and pressure that he found himself subjected to. Again, these general assertions of distress, as well as stress and pressure, without any underlying factual nexus of a kind that identifies how they were operative in relation to overwhelming the applicant in the making of the orders of 2016 fall well short of a factual issue that is reasonably arguable to support a case being brought under s 79A of The Act.
The applicant’s affidavit was admitted into evidence excluding any affidavits from the earlier proceedings. The applicant’s affidavit, however, does make reference to pressure being placed on some other person in relation to the family law proceedings. That reference again falls well short of any factual detail that identifies an arguable issue of fact as to operative duress upon the applicant in relation to the making of the orders in 2016.
The applicant’s assertion in paragraph 15 that the pressure on another person by her former solicitors was stress and pressure that applies to him. This assertion, again, falls well short of identifying any operative duress capable of identifying an arguable fact in issue to disclose a reasonably arguable case of duress under s 79A of The Act.
The applicant identifies receiving proceedings in relation to possible contempt. The service of communications and/or applications relating to contempt do not of themselves identify an issue of fact as to the existence of operative duress overwhelming the applicant in relation to the orders made in 2016.
The email on 9 May 2016 in the context of a request for negotiations stated:
One final matter that we are instructed to bring to your attention was the clear contempt of various orders that have been committed by the husband during the course of these proceedings.
There is then reference to the sale of a motor vehicle and a failure to comply with orders relating to payment of spousal maintenance and proposing to identify each order breached but identifying that they are serious matters. There is a reference to a custodial sentence imposed in another case and the consequences that could follow. There is a reference to the intention to commence contempt proceedings following the delivery of judgment in the event that settlement cannot be achieved. There is then a statement in relation to entering into a deed and how the rights should be dealt with and extinguishing any claim in relation to contempt.
The email on its face does no more than identify an aggressive approach to litigation. Materially, the applicant has failed to identify the facts relevant to this conduct that support a factual issue as to this email giving rise to some operative duress upon the applicant in relation to the making of Court orders.
The applicant also identifies that he was engaged in dealing with the process of multiple companies in liquidation and receivership at the time and that he was flooded with correspondence. Those are not facts that identify themselves a triable issue of duress that was operative on the applicant in relation to the entering into of orders. They raise no higher than the applicant’s assertions of generalised stress and pressure. Those are not matters that identify a triable issue of fact in respect of duress.
The applicant refers to the complexity of the matters and his attention being required and negotiations, including impacts of the bankruptcy. The applicant deposed to the assertion that the now discontinued second respondent caused for the 2016 orders to be executed on behalf of the applicant without consulting him about any consideration of future capital gains tax implications, nor of his other interests.
The conduct of the second respondent pursuant to power vested in the trustee under the Bankruptcy Act 1966 (Cth) is not of itself the identification of a factual issue that gives rise to an arguable case of duress under s 79A of The Act. A very general reference to capital gains tax implications falls well short of identifying some operative fact that overwhelmed the applicant so as to give rise to an arguable case of duress or to identify a factual arguable triable issue in relation to capital gains tax implications.
The extent to which the second respondent in the exercising of his statutory powers obtained legal taxation advice, again, falls well short of identifying a triable factual issue of duress and the correspondence in relation to a capital gains tax liability, again, falls well short of identifying operative duress upon the applicant so as to give rise to a triable factual issue in relation to duress under s 79A of The Act.
In considering whether or not there is a reasonably arguable case, the Court must, of course, take the applicant’s case at its highest. Even doing so on the affidavit as expressed, there is no factual assertion that properly identifies operative duress in relation to the applicant in respect of either the 2016 orders or the 2019 orders.
Taking into account the cautions identified, the Court is clearly satisfied that there is not a triable issue of fact that has a reasonable prospect of success of duress under s 79A of The Act. The Court is clearly satisfied that the applicant’s case does not have a reasonable prospect of success under s 79A of the Act.
The Court is also required to take into account s 81 of the Act and the finality that was intended from the orders made in the 2013 proceedings in 2016 and 2019. The evidence of the applicant falls well short of identifying in respect of those particular orders facts to support an arguable case of operative duress upon the applicant in relation to the making of those particular orders.
In circumstances where the applicant is seeking to re-agitate matters the subject of earlier proceedings, high level generalisations of stress and pressure fall well short of identifying an arguable case of duress under s 79A of the Act.
Pursuant to s 45A of The Act, the Court may make a summary dismissal order if satisfied that the applicant’s proceedings have no reasonable prospect of success. The Court has taken into account the breadth of that phrase “no reasonable prospect of success” as elaborated by s 45A(3) of the Act. On the evidence currently before the Court, the Court is satisfied that the application brought by the applicant has no reasonable prospect of success.
On the evidence before the Court, these are proceedings that appear to be vexatious and an abuse of process and seeking to re-agitate issues raised and determined by earlier orders. There is no triable issue of fact under s 79A of the Act, even taking the applicant’s case at its highest.
Accordingly, the Court is satisfied this is an appropriate matter in which to exercise the Court’s summary powers under s 45A of the Act.
COSTS
These proceedings were commenced on 1 August 2022. The Court has summarily dismissed the proceedings today under s 45A of the Act. The first respondent has moved for costs under s 117 of The Act. The Court must be satisfied under subsection (2) that there are circumstances that justify the Court in making a costs order. In the circumstances where the Court has found the proceedings were vexatious and an abuse of process and had no reasonable prospect of success, the Court is satisfied that there are circumstances that justify the Court in making a costs order.
The Court must in relation to the making of a costs order, take into consideration the matters in s 117(2A). The Court has taken into account the evidence relating to the financial circumstances and the financial statement of the applicant, notwithstanding those circumstances not being substantial, the Court is satisfied that it is appropriate to make a costs order in the circumstances of the present case.
The Court has taken into account in that regard that there are existing orders that have not been complied with by the applicant in which there is a significant amount of approximately $364,000 still outstanding.
Section 117(2A)(a) does not give rise to grounds by reason of which a costs order should not be made in the present case. Section 117(2A)(b) has no application. In relation to section 117(2A)(c), there are related proceedings, which for the reason I have just given weigh in favour of the making of a costs order, given the outstanding orders from the earlier proceedings that have not been complied with and the finding that these proceedings were vexatious and abuse of process. In relation to s117(2A)(d) this has no relevant application. In relation to s 117(2A)(e) the first respondent has been wholly successful in relation to the response and the summary dismissal of the proceedings. In relation to s 117(2A)(f) there is no relevant offer to be taken into account. In relation to s 117(2A)(g) the Court considers the failure to pay the earlier amount under the earlier orders as a relevant and material consideration in relation to the making of that costs order.
It is for these reasons that the Court made the costs order identified.
I certify that the preceding forty-one (41) numbered paragraphs are a true copy of the published oral reasons for Judgment of Judge Street. Associate:
Dated: 27 October 2023
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