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Dalton & Nagle

Dalton & Nagle

Case [2021] FamCA 376 8 June 2021

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FAMILY COURT OF AUSTRALIA
Dalton & Nagle [2021] FamCA 376

File number(s): SYC 2434 of 2018

Judgment of: HENDERSON J

Date of judgment: 8 June 2021

Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Application for summary dismissal – Where there is no evidence of the parties’ financial relationship before the Court – Discussion of principles applying to applications for summary dismissal – Where the mother’s case in relation to property, taken at its highest, did not raise an issue that a court would be required to determine under section 90SM of the Family Law Act 1975 (Cth) – Where parenting proceedings have been determined in New Zealand – Where the mother continues to actively participate in parenting proceedings in New Zealand through the filing of applications – Property application summarily dismissed – Interim parenting application dismissed as an abuse of process.

Legislation:
Child Support (Assessment) Act 1989 (Cth)

Family Law Act 1975 (Cth) ss 44(5), 45A, 90SF(3), 90SE, 90SM

Family Law Rules 2004 rr 1.12, 5.01, 10.12

Trans-Tasman Proceedings Act 2010 (Cth)

Cases cited:
Beck & Beck (2004) FLC 93-181

Bigg v Suzi (1998) FLC 92-799

Brimaud v Honeysett Instant Print Pty Ltd (1988) 217 ALR 44

Cleary v Jeans [2006] NSWCA 9

Five D v Impact Building [2007] NSWSC 993

Friar & Friar [2011] FamCAFC 71

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

Pelerman v Pelerman (2000) FLC 93-037

Ritter & Ritter and Anor (2020) FLC 93-957

Secretary of State of Trade and Industry v Bairstow [2004] 4 All ER 325

Tomlinson v Ramsey Food Processing Pty Limited (2015) 256 CLR 507

Judge Peter Boshier, “Developing Family Relationships” (2010) 16 Canterbury Law Review 127

Number of paragraphs: 146

Date of hearing: 28 April 2021

Place: Sydney

The Applicant Litigant in person

Counsel for the Respondent: Mr Djurdjevic

Solicitor for the Respondent: Coleman Greig Lawyers
ORDERS

SYC 2434 of 2018

BETWEEN:
MS DALTON
Applicant

AND:
MR NAGLE
Respondent

ORDER MADE BY:

HENDERSON J

DATE OF ORDER:

8 JUNE 2021

THE COURT ORDERS THAT:
1.The mother’s Initiating Application filed 18 April 2018, First Amended Initiating Application filed 22 November 2018 and Second Amended Initiating Application filed 31 January 2020 are dismissed.
2.The mother’s Applications in a Case filed 6 June 2018, 3 April 2019, 11 October 2019 and 17 November 2020 are dismissed.

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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Dalton & Nagle has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT

This is an application by Mr Nagle (“the father”) to summarily dismiss outstanding…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Dalton & Nagle

Details

AGLC: Dalton & Nagle [2021] FamCA 376
Case: [2021] FamCA 376
Decision Date: 8 June 2021

CaseChat Overview and Summary

In the matter of *Dalton & Nagle*, heard by Henderson J, the applicant mother sought property settlement orders and interim parenting orders. The respondent father sought the summary dismissal of the property application and argued that the interim parenting application constituted an abuse of process.

The central legal issues before the court were whether the mother's property application, in the absence of evidence regarding the parties' financial relationship, disclosed a cause of action capable of being determined under section 90SM of the *Family Law Act 1975* (Cth), and whether the interim parenting application was an abuse of process given ongoing parenting proceedings in New Zealand.

Henderson J applied the principles governing applications for summary dismissal, finding that the mother's case, taken at its highest, did not raise an issue that a court would be required to determine under section 90SM of the Act. The court noted that the mother continued to actively participate in parenting proceedings in New Zealand. Consequently, the property application was summarily dismissed.

The court further ordered that the mother's interim parenting application be dismissed as an abuse of process. The Initiating Applications and Applications in a Case filed by the mother were dismissed.

Orders

Orders of the court

SYC 2434 of 2018

BETWEEN:

MS DALTON

Applicant

AND:

MR NAGLE

Respondent

ORDER MADE BY:

HENDERSON J

DATE OF ORDER:

8 JUNE 2021

THE COURT ORDERS THAT:

1. The mother’s Initiating Application filed 18 April 2018, First Amended Initiating Application filed 22 November 2018 and Second Amended Initiating Application filed 31 January 2020 are dismissed.

2. The mother’s Applications in a Case filed 6 June 2018, 3 April 2019, 11 October 2019 and 17 November 2020 are dismissed.

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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Citations

Dalton & Nagle [2021] FamCA 376

Most Recent Citation

Decker & Decker [2022] FedCFamC1F 563

Cases Citing This Decision

Jess & Jess (No 7) [2023] FedCFamC1F 291
Citation 1

…63 Fam LR 448 Cummings v Claremont Petroleum NL (1996) 185 CLR 124 Dalton & Nagle [2021] FamCA 376 Decker & Decker [2022] FedCFamC1F 563 Deputy Commissioner of Taxation v Swain (1988) 20 FCR 507 DMW v CGW (1982) 151 CLR 491 Epitoma Pty Ltd v Australian Meat Industry Employees' Union (No 2) (1984) 3 FCR 55 Federated…
Decker & Decker [2022] FedCFamC1F 563
Citation 2 (Para 7)

…hich was handed down on 23 November 2020, Mohsen & Collings (No 2) [2021] FamCA 170 judgment in which was handed down 30 March 2021, Dalton & Nagle [2021] FamCA 376 judgment in which was handed down on 8 June 2021, Herbert & Herbert [2021] FamCAFC 108 judgment in which was handed down on 5 July 2021, Min & Orton [2…

See all citing cases →

Cases Cited

Tomlinson v Ramsey Food Processing Pty Ltd [2015] HCA 28
Citation 1 (Para 39)

…In Tomlinson v Ramsey Food Processing Pty Limited (2015) 256 CLR 507 at [25]: Abuse of process, which may be invoked in areas in which estoppels also apply, is inherently broader and more flexible than estoppel. Although insusceptible of a formulation which comprises closed categories, abuse of process is capable of…
Friar & Friar [2011] FamCAFC 71
Citation 2 (Para 47)

…The first is the decision of the Full Court of Friar & Friar [2011] FamCAFC 71 (“ Friar ”), in which their Honours allowed an appeal of a decision by a Family Court Judge to dismiss a wife’s claim for property adjustment on a summary basis.…
Five D v Impact Building [2007] NSWSC 993
Citation 3 (Para 38)

…004] 4 All ER 325 (“ Bairstow ”) relating to abuse of process applications and this ratio from Cleary was adopted in Five D v Impact Building [2007] NSWSC 993 at [26]: In [ Cleary ], the New South Wales Court of Appeal adopted the reasoning in [ Bairstow ] in finding that abuse of process can apply where parties to…
Cleary v Jeans [2006] NSWCA 9
Citation 4 (Para 38)

…In the matter of Cleary v Jeans [2006] NSWCA 9 (“ Cleary ”), a decision of the NSW Court of Appeal, their Honours adopted the reasoning in Secretary of State of Trade and Industry v Bairstow [2004] 4 All ER 325 (“ Bairstow ”) relating to abuse of process applications and this ratio from Cleary was adopted in Five…
Pelerman v Pelerman [2000] FamCA 881
Citation 5 (Para 49)

…Reciting Beck & Beck (2004) FLC 93-181 ( Beck & Beck) , and referring to Bigg v Suzi (1998) FLC 92-799 and Pelerman v Pelerman (2000) FLC 93-037 her Honour set out the relevant principles as follows: “(a) The power for summary dismissal is a discretionary one. (b) Relief “is rarely and sparingly provided”. (c) The parties se…
Lindon v Commonwealth of Australia [1996] HCATrans 165
Citation 6

…NSWCA 9 Five D v Impact Building [2007] NSWSC 993 Friar & Friar [2011] FamCAFC 71 Lindon v The Commonwealth of Australia (No 2) (1996) 136 ALR 251 Pelerman v Pelerman (2000) FLC 93-037 Ritter & Ritter and Anor (2020) FLC 93-957 Secretary of State of Trade and Industry v Bairstow [2004] 4 All ER 325 Tomlinson v Ramsey…
Munnings v Australian Government Solicitor [1994] HCA 12
Citation 7 (Para 50)

…lief, 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 (Munnings v Australian Government Solicitor (1994) 68 ALJR 196 at 171f, per Dawson J) or in advancing a claim that is clearly frivolous or vexatious; (Dey v Victorian Railways Commissioners (1949) 78…
Munnings v Australian Government Solicitor [1994] HCA 3
Citation 8 (Para 50)

…t is clear, on the face of the opponent's documents, that the opponent lacks a reasonable cause of action (Munnings v Australian Government Solicitor (1994) 68 ALJR 196 at 171f, per Dawson J) or in advancing a claim that is clearly frivolous or vexatious; (Dey v Victorian Railways Commissioners (1949) 78 CLR 62 at 91…
Webster v Lampard [1993] HCA 57
Citation 9 (Para 49)

…the basis that the respondent's version will ultimately be accepted at the trial of the action (see Webster v Lampard (1993) 177 CLR 598 at 608).”…
Autodesk Inc v Dyason (No 2) [1993] HCA 6
Citation 10 (Para 40)

…In Brimaud v Honeysett Instant Print Pty Ltd (1988) 217 ALR 44 (“ Brimaud ”) at 46: The private injustice and public undesirability of permitting the relitigation of matters already litigated once is recognised in a number of principles of law, notably the rules relating to res judicata and issue estoppel, the more…
Dey v Victorian Railways Commissioners [1949] HCA 1
Citation 11 (Para 50)

…tor (1994) 68 ALJR 196 at 171f, per Dawson J) or in advancing a claim that is clearly frivolous or vexatious; (Dey v Victorian Railways Commissioners (1949) 78 CLR 62 at 91.)”…
Lindon v Commonwealth (No 2) [1996] HCA 14
Citation 12 (Para 50)

…al put forward by the respondent (to that application) is to be found in the passage from the judgment of Kirby J in Lindon v The Commonwealth (No 2) (1996) 70 ALJR 541 at 544-5 (which was quoted by the Full Court in its judgment in Bigg v Suzi ) where his Honour said: "... 2. To secure such relief, the party seeking…

Legislation Cited

Family Law Rules 2004 (Cth) 1.12, 10.12, 5.01
7 mentions (from Para 34)
Family Law Act 1975 (Cth) 44(5), 45A, 90SE, 90SF(3), 90SM
6 mentions (from Para 5)
Child Support (Assessment) Act 1989 (Cth)
1 mention
Trans-Tasman Proceedings Act 2010 (Cth)
1 mention (from Para 21)

File number(s):	SYC 2434 of 2018
Judgment of:	HENDERSON J
Date of judgment:	8 June 2021
Catchwords:	FAMILY LAW – PRACTICE AND PROCEDURE – Application for summary dismissal – Where there is no evidence of the parties’ financial relationship before the Court – Discussion of principles applying to applications for summary dismissal – Where the mother’s case in relation to property, taken at its highest, did not raise an issue that a court would be required to determine under section 90SM of the Family Law Act 1975 (Cth) – Where parenting proceedings have been determined in New Zealand – Where the mother continues to actively participate in parenting proceedings in New Zealand through the filing of applications – Property application summarily dismissed – Interim parenting application dismissed as an abuse of process.
Legislation:	Child Support (Assessment) Act 1989 (Cth) Family Law Act 1975 (Cth) ss 44(5), 45A, 90SF(3), 90SE, 90SM Family Law Rules 2004 rr 1.12, 5.01, 10.12 Trans-Tasman Proceedings Act 2010 (Cth)
Cases cited:	Beck & Beck (2004) FLC 93-181 Bigg v Suzi (1998) FLC 92-799 Brimaud v Honeysett Instant Print Pty Ltd (1988) 217 ALR 44 Cleary v Jeans [2006] NSWCA 9 Five D v Impact Building [2007] NSWSC 993 Friar & Friar [2011] FamCAFC 71 Lindon v The Commonwealth of Australia (No 2) (1996) 136 ALR 251 Pelerman v Pelerman (2000) FLC 93-037 Ritter & Ritter and Anor (2020) FLC 93-957 Secretary of State of Trade and Industry v Bairstow [2004] 4 All ER 325 Tomlinson v Ramsey Food Processing Pty Limited (2015) 256 CLR 507 Judge Peter Boshier, “Developing Family Relationships” (2010) 16 Canterbury Law Review 127
Number of paragraphs:	146
Date of hearing:	28 April 2021
Place:	Sydney
The Applicant	Litigant in person
Counsel for the Respondent:	Mr Djurdjevic
Solicitor for the Respondent:	Coleman Greig Lawyers

SYC 2434 of 2018
BETWEEN:	MS DALTON Applicant
AND:	MR NAGLE Respondent

ORDER MADE BY:	HENDERSON J
DATE OF ORDER:	8 JUNE 2021