Dittmar and Dittmar

[2016] FCCA 2498

FEDERAL CIRCUIT COURT OF AUSTRALIA

DITTMAR & DITTMAR [2016] FCCA 2498

Catchwords:
FAMILY LAW – Costs – Incompetent applications – Wife filed six interim applications to have six third parties joined in her Family Law proceedings –Applications outside jurisdiction of this Court – All six applications dismissed with costs.

Legislation:

Family Law Act 1975 (Cth) s.117

Daines v Daines [2014] FamCAFC 170

Applicant: MS DITTMAR

Respondent: MR DITTMAR

File Number: SYC 6794 of 2014

Judgment of: Judge Henderson

Hearing date: 8 August 2016

Date of Last Submission: 8 August 2016

Delivered at: Sydney

Delivered on: 8 August 2016

REPRESENTATION

Solicitors for Applicant: Self-represented litigant

Solicitors for Respondent: Self-represented litigant

ORDERS

1. The matter is listed for final hearing on 16 June 2017 at 10am on the wife’s application for division of the parties’ property including a superannuation splitting order and a spousal maintenance application. 

2. The wife is to file an application setting out her application for division of the husband’s superannuation and the amount of spousal maintenance she requires with 1 trial affidavit and updating financial statement by 2 February 2017.

3. The husband is to respond by 13 April 2017.

4. The application in a case filed 9 March 2016 against Mr A be dismissed.

5. The wife is to pay Mr A, or has he otherwise directs, the sum of $500.00 by way of costs no later than 25 November 2016.

6. The application in a case filed 12 April 2016 against Mr M be dismissed.

7. The wife is to pay Mr M, or as he may otherwise direct, the sum of $500.00 by way of costs no later than 27 November 2016.

8. The applications in a case filed 18 April 2016, against Mr S and the (omitted) Bowling Club, be dismissed.

9. The respondents to the applications in a case referred to in Order 8 herein are to file and serve written submissions in relation to any application for costs by 4 September 2016.

10. The wife is to respond by 9 October 2016.

11. The application in a case filed 15 February 2016 against Mr A be dismissed.

12. The respondent to the application in a case referred to in Order 11 herein is to file and serve written submissions in relation to any application for costs by 4 September 2016.

13. The wife is to respond by 9 October 2016.

14. The application in a case filed 22 April 2016 against Mr R be dismissed.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 6794 of 2014

MS DITTMAR

Applicant

And

MR DITTMAR

Respondent

REASONS FOR JUDGMENT

1. In the matter of Dittmar & Dittmar the Wife filed six applications to join six third parties to these proceedings. I propose to dismiss all the interim applications. They are incompetent in that I have no power to deal with the issues raised or to make the orders the wife seeks.

2. It is my view that, having read those applications, they do not disclose a proper cause of action, and are improper. The Wife has improperly joined liquidators to this application and filed incompetent at-law applications not supported by any cogent evidence, and in the wrong jurisdiction against 5 individuals and one company.

3. The wife seeks orders against Mr A and for this court to conduct an enquiry into Mr A’s liquidation of a company she and her husband ran and she seeks compensation. Her applications had no prospect of success in any jurisdiction, let alone in the Family Law jurisdiction, and the respondents have been put to considerable expense defending this application, and a costs order of $500 is reasonable.

4. I have read the wife’s’ financial position and I can see that she is supported by a Centrelink benefit and has no assets. The wife is impecunious however; this Court must always act in aid to protect the rights of a third party.

5. The Full Court authority of Daines v Daines[1] in part states that impecuniosity is not necessarily a reason not to make a costs order. In circumstances where the wife has chosen this course of action, I propose to exercise my discretion on section 117(2)[2] and make the costs order as sought of $500 in favour of Mr A.

   [1] Daines v Daines [2014] FamCAFC 170

   [2] Family Law Act 1975 (Cth) s.117

6. The wife seeks orders against Mr M for outrage and conspiracy and compensation for aggravated and exemplary damages for intentional torts. Again, this is an incompetent application with no prosects of success and I propose to make costs orders today, as sought, of $500 in favour of Mr M.

7. The wife has filed an application against Mr S and the (omitted) Bowling Club, which has been responded to. The wife’s application in relation to the Club was a claim for intentional torts conspiracy to defraud, misogynistic behaviour, torment and insolence and sought an order for aggravated damages of $300,000 and that the club sign a permanent agreement with her under the same terms they previously signed with the (omitted business), a (omitted) Club she and her husband were the directors of at a point in time. This is an incompetent application with no prosects of success and I propose to make costs orders today as sought of $500.  

8. The wife also sought an additional application and order against Mr S for acting in a continuous disregard for his fiduciary duties as a board member of the (omitted) Bowling Club and sought $300,000 again him for the intentional tort of conspiracy.

9. The orders sought by the wife, even if proper are improperly brought in this Court, the Federal Circuit Court. This Court deals with issues of division of property between parties. Certainly, third parties can be joined on occasions where there is a sufficient causal link, and the affidavit evidence filed in support of joining a third party is sufficient. The various affidavits filed by the wife in support of these applications are seriously deficient. They disclose no cause of action, no nexus to her applications and the law. Her affidavits and framed orders are a series of what the wife sees as wrongs perpetrated against her by these people. This is not evidence and there is no evidence to support the wife’s joining of these parties or for the claims that she has made.

10. Those applications, as with the application against Mr M, and Mr A a liquidator of the company is dismissed as being improperly brought and without foundation.

11. I stand over the costs claimed by Mr S and the (omitted) Bowling Club for written submissions.

12. The solicitors for the respondents, who have been wholly successful in this application, are to forward to the Court and to the Wife their written submissions by 4 September 2016. The wife has until 9 October 2016 to respond.  I will deliver the decision when I can.

13. I will dismiss the wife’s application filed 15 February 2016 against the (omitted) Bowling Club and Mr A. This Court is incompetent to make any of the orders sought by the wife. The wife has failed, by the evidence filed, to satisfy the Court it has jurisdiction. I just do not have the power to do what you want and your application is dismissed and having regard to the response filed by Mr D on 4 July 2016.

14. Ms Dittmar, in relation to Mr K again you have failed to make out that  I have jurisdiction to even entertain what you seek, or that there would be grounds to make the orders sought on the basis of your affidavit filed 15 February 2016. Your application filed 22 April 2016 to join Mr K is dismissed. I have no power to make orders for aggravated damages.

15. Madam, you are the one who is choosing to pursue the matters. I am looking at what you have presented to me, and you have failed to make out your case.

16. I list the matter on 16 June 2017 for a hearing in relation to division of property and the wife’s application for spousal maintenance. The wife is to file an application setting out the division of superannuation and the amount of spousal maintenance she requires, together with one trial affidavit. That document is to be filed by 2 February 2017. The husband is to respond by 13 April 2017.

17. The husband will use his best endeavours to be here for trial.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Judge Henderson

Date: 28 September 2016