Dorfer and Dorfer

[2007] FamCA 260

FAMILY COURT OF AUSTRALIA

DORFER & DORFER [2007] FamCA 260

FAMILY LAW - PROPERTY – Consideration of wife’s application under Section 79A and her application for leave to extend time to review orders

Family Law Act 1975 (Cth)

APPLICANT: Mr Dorfer

RESPONDENT: Mrs Dorfer

FILE NUMBER: SYF 2189 of 1991

DATE DELIVERED: 26 February 2007

PLACE DELIVERED: Sydney

JUDGMENT OF: Watts J

HEARING DATE: 26 February 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Maurice

SOLICITOR FOR THE APPLICANT: David H. Cohen & Co

COUNSEL FOR THE RESPONDENT: Mr Jackson

SOLICITOR FOR THE RESPONDENT: Anne Day & Associates

Orders

1. The husband’s application that the wife’s response seeking orders under section 79A and seeking an extension of time to review orders under rule 1.4 be summarily dismissed, is hereby dismissed.

2. The wife’s costs in this matter are reserved.

3. The parties are granted leave to approach the list clerk for the listing of this matter for a two day final hearing before a Judicial Registrar. 

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYF 2189 of 1991

Mr Dorfer

Applicant

And

Mrs Dorfer

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. This matter was listed before me for the purposes of considering the wife’s application under Section 79A and her application for leave to extend time to review orders made by this Court on 31 May 1993. 

2. It was also listed to deal with the husband’s application for implementation of those orders. 

3. At the commencement of the hearing before the husband sought leave to make an oral application that the wife’s response seeking orders under Section 79A or seeking an extension of time to review orders under Rule 1.14, be summarily dismissed. 

4. The wife did not oppose that leave being granted.  Leave was granted to the husband to make that oral application and that is what I am dealing with. 

THE RELEVANT LAW IN RELATION TO SUMMARY DISMISSAL

1. The Full Court in Bigg & Suzi (1998) FLC 92-799 dealt with a power of the Court to summarily dismiss an application.  The Full Court at paragraph 5.5 to 5.7 said the following:-

   5.5  That this Court has the necessary inherent power to dismiss or permanently stay an application which cannot succeed, was recognised by Nygh J in Aldred (1986) FLC ¶ 91-753 and affirmed by the Full Court in Spellson (1989) FLC ¶92-046. In Aldred, in addition to referring to the authorities concerning the inherent powers of this Court, his Honour referred to Halsbury's Laws of England 4th Edition vol 37 Practice and Procedure, paragraph 435, where it is said:

   ``So under its inherent jurisdiction the court may strike out the whole or part of the indorsement on a writ or stay or dismiss an action which is frivolous or vexatious or an abuse of process or which must fail or which the plaintiff cannot prove, and which is without a solid basis...''

   5.6  It is also stated in Halsbury that the power to strike out, stay or dismiss under the court's inherent jurisdiction is discretionary.

   5.7  Further, pursuant to s 38(2) of the Act, the Family Court may, where its own rules are insufficient, apply the rules of the High Court. Included in those latter rules is O 26 r 18 which is as follows:

   ``(1) The Court or a Justice may order a pleading to be struck out on the ground that it does not disclose a reasonable cause of action or answer.

   (2) In that case, or in case of the action or defence being shown by the pleadings to be frivolous or vexatious, the Court or a Justice may order the action to be stayed or dismissed, or judgment to be entered accordingly, as is just.''

2. The Full Court emphasised the discretionary nature of this remedy and at paragraph 5.10 quoted Kirby J in Lindon v The Commonwealth (No. 2) (1996) 70 ALJR 541 at 544-5, as follows:-

   5.10  The principles which govern the exercise of that discretion, be it exercised under O 26 r 18, or under the inherent power, [or, we would suggest, under O 63 rr 1 and 2] were recently stated by Kirby J in Lindon v. The Commonwealth (No. 2) (1996) 70 ALJR 541 at 544-5, as follows:

   "The approach to be taken by the Court to the Commonwealth's application for summary relief is not in doubt:

   1.  It is a serious matter to deprive a person of access to the courts of law for it is there that the rule of law is upheld, including against government and other powerful interests. This is why relief,

   [84975]

   whether under O 26, r 18 or in the inherent jurisdiction of the Court, is rarely and sparingly provided; [General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 128f; Dyson v Attorney-General [1911] 1 KB 410 at 418.

   2.  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 [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.]

   3.  An opinion of the Court that a case appears weak and such that it is unlikely to succeed is not, alone, sufficient to warrant termination. [Coe v The Commonwealth (1979) 53 ALJR 403; Wickstead v Browne (1992) 30 NSWLR at 5-7.] Even a weak case is entitled to the time of a 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;

   4.  Summary relief of the kind provided for by O 26, r 18, for absence of a reasonable cause of action, is not a substitute for proceeding by way of a demurrer. [Coe v The Commonwealth (1979) 53 ALJR 403 at 409.] If there is a serious legal question to be determined, it should ordinarily be determined at a trial for the proof of facts may sometimes assist the judicial mind to understand and apply the law that is invoked and to do so in circumstances more conducive to deciding a real case involving actual litigants rather than one determined on imagined or assumed facts;

   5.  If, notwithstanding the defects of pleadings, it appears that a party may have a reasonable cause of action which it has failed to put in proper form, a court will ordinarily allow that party to reframe its pleading. [Church of Scientology v Woodward (1980) 154 CLR 25 at 79.] A question has arisen as to whether O 26, r 18 applies to part of a pleading. [ Northern Land Council v The Commonwealth (1986) 161 CLR 1 at 8.] However, it is unnecessary in this case to consider that question because the Commonwealth's attack was upon the entirety of Mr Lindon's statement of claim; and

   6.  The guiding principle is, as stated in O 26, r 18(2), doing what is just. If it is clear that proceedings within the concept of the pleading under scrutiny are doomed to fail, the Court should dismiss the action to protect the defendant from being further troubled, to save the plaintiff from further costs and disappointment and to relieve the court of the burden of further wasted time which could be devoted to the determination of claims which have legal merit.

3. It is clear from the authorities that while the court has jurisdiction summarily to dismiss, this is reserved for a case in which it can be demonstrated that the substantive application cannot possibly proceed (see Ferrall & McTaggart (Trustees for the Sapphire Trust) & Ors v Blyton (2000) FLC 93-054 at paragraph 98).

4. An application of this nature must be determined only on the material put forward by the respondent to the application (see Lindon v The Commonwealth (No. 2) at page 544 - 545 supra, Bigg & Suzi at paragraph 66.31 and Beck v Beck (2004) FLC 93-181) 

EVIDENCE BEFORE ME

1. Only material filed or relied upon by the wife is in evidence before me.  The wife has filed the following documents:-

   9.1.Affidavit sworn 13 November 2006;

   9.2.Affidavit sworn 12 December 2006;

   9.3.Financial statement sworn by the wife on 13 November 2006;

   9.4.Exhibit A being letter from the husband’s solicitor seeking further and better particulars dated 15 November 2006 and letter from the wife’s solicitors dated 29 November 2006 responding to that request for particulars;

   9.5.A complete copy of the orders made by the Court on 31 May 1993;

   9.6.Exhibit C which sets out exchange rates of the Swiss Franc in Australian dollars for various years.

BACKGROUND

1. The wife was born in August 1955 and is currently 51 years of age. 

2. When the wife was about 20 she was involved in a car accident in Switzerland.  She received compensation of about 10,000 Swiss Francs before the marriage.  In 1975 the exchange rate was about 2.58 Swiss Francs so the amount of the compensation in Australian dollars at the time would have been about $3,875. 

3. When the parties commenced to live together in about 1975 the wife says that she was 21 years of age and the husband was 20 years of age. 

4. The parties were married in May 1981

5. The parties moved to Australia in about September 1981.

6. The wife says she studied English at that time and that she had studied English at school.  She said “when I first came to Australia my English was very basic.  I studied English and over the years, my English has improved”.  She said she studied English part time with other migrants for two years.

7. The wife says in 1984 her parents gifted her 20,000 Swiss Francs to assist in the purchase of the home.  She asserts in her affidavit that the exchange rate for that time was fairly close to par (exhibit C shows the exchange rate to be 1.14).

8. In March 1986 the property at H was purchased for the sum of $69,000.  $45,000 was borrowed from the Commonwealth Bank.  Although it is not clear the wife says “I used the 10,000 Swiss Francs which was about AUS $10,000 to renovate the house as it was old”.  I an uncertain as to what that evidence means.  The exchange rate at the time of the purchase of the house was 1.49.  It is unclear as to whether or not the 10,000 Swiss Francs which were received by the wife before she was married were left overseas and only brought to Australia in 1986. 

9. There are two children of the marriage, a daughter born in June 1984 and a son born in January 1987. 

10. The parties separated in February 1989 and were separated under the one roof until September 1989.  At this time the wife says the husband took all the financial records, her passport and birth certificates.  The wife says although the parties had been separated under the one roof since February the husband left the home in September with only one hour’s notice.  The wife says that at this time she was consulting a Dr S, psychiatrist at U for depression and she was on antidepressants. 

11. On 28 October 1991 orders were made in relation to the parties’ children.  They were to live primarily with them mother.

12. The parties signed orders for final property settlement which were made by consent in the Family Court of Australia at Sydney in May 1993.

13. The parties divorced in February 1995. 

14. The wife and the children continued to live in the matrimonial home at H between the date of the separation and 17 November 2006 (paragraph 62 of the wife’s second affidavit).

15. Contracts for the sale of the matrimonial home were exchanged on or about 10 November 2006 for a sale price of $465,000 (see paragraphs 57 and 59 of the wife’s second affidavit). 

16. I am told settlement is expected today.

WHAT THE WIFE SAYS HAPPENED AFTER THE SEPARATION

1. After the separation the wife was on social security benefits.  At the time of separation the children were about 5 and 2 years of age. 

THE TERMS OF THE CONSENT ORDER

1. The order made on 31 May 1993 is in the following terms:-

   Notations

   1.The parties were married [in][ May 1981, in Switzerland.

   2.There are two children of the marriage, [a daughter] born [in] June 1984 and [a son] born [in] January 1987.

   3.The parties separated in February 1989.  The wife and the said children still reside in the former matrimonial home, situated at [H].

   4.The former matrimonial home is subject to a mortgage to Commonwealth Bank of Australia, [R Branch] with present balance of approximately $45,000 and which the husband has been paying at the rate of $590.00 per month.

   5.The parties have had discussions regarding property settlement and it has been agreed that the wife and the children are to reside in the former matrimonial home until the youngest child attains the eighteen years of age or becomes self supporting whichever shall first occur.

   6.Upon the youngest child obtaining the age of eighteen years or becoming self supporting, the former matrimonial [sic] is to be sold and the net proceeds thereof to be divided as to the husband 65% and as to the wife 35%.

   7.The husband and wife agree that payment of mortgage will include a component for maintenance in relation to the said children.  The wife will in consideration for which release the husband of any obligation to pay child maintenance.

   8.In the interim the wife is to maintain the former matrimonial home in good order and will be responsible for and attend to payment of all rates, taxes, stamp duties, house insurance and other outgoings relating to the home.

   9.Upon the youngest child attaining the age of eighteen years or becomes self supporting, whichever shall first occur, and until the former matrimonial home is sold, the wife shall pay rent at the market rate to the husband, to be calculated at 0.15% per week of the market value of the house.  The market value will be assessed by a Real Estate Agent.

   By consent the parties agree as follows:-

   1.That the wife and children reside in the former matrimonial home until the youngest child obtains the age of eighteen years or becomes self supporting whichever shall firs occur.

   2.That the husband shall pay mortgage in respect of the former matrimonial home (which is to be paid in lieu of child maintenance).

   3.Upon the youngest child obtaining the age of eighteen years or becomes self supporting whichever shall first occur, the wife shall meet all outgoings in relation to the up-keep of the home including rates, taxes, stamp duties, house insurance etc.

   4.Upon the youngest child obtaining the age of eighteen years or becomes self supporting whichever shall occur, the former matrimonial home is to be sold forthwith and the net proceeds of same to be divided as to the husband 65% and as to the wife 35%.

   5.Upon the youngest child attaining eighteen years or becomes self supporting and until the former matrimonial home is sold the wife shall pay rent monies to the husband at the calculated rate of 0.15% of the market value of the house, until the said matrimonial home is sold.  The market value of the house will be assessed by a Real Estate Agent.

PROPERTY ORDERS

1. The wife’s evidence in relation to how the property orders were made is reasonably short so I set it out in full:-

   44.Property orders were made on 19 May 1993 [I note this is the date the orders were filed.  They were made on 31 May 1993].  At that time I just wanted piece and quiet.  I felt under too much pressure.  I did not have any funds to employ a solicitor.  Legal Aid paid for my solicitor when the children’s orders were made.  [The husband] had taken all the paper work from the house when he left so I had no information as [sic] our finances.  I did not have any money to pay a solicitor.

   45.Between 1991 and 1993 [the husband] would discuss the property orders with me when he came to collect the children.  I recall I had a conversation with him which included words to the following effect:-

   “[The husband] said:

   ‘We need to sell the house.  I’m bringing a real estate agent here’.

   I said:

   ‘Where am I going to go?  I can’t go back to Switzerland.  By the time we pay the bank and my parents there is no money left’.

   [The husband] said:

   ‘You can live in a Housing Commission place’.

   We had several conversations to this effect.  He handed me a proposal with three options.  None of the options referred to payment of rent. I choose [sic] the second option.”

   46.The first proposal was for [the husband] to pay minimal maintenance and receive 55% of the house when [the son] was 18.  The second proposal was for [the husband] to pay maintenance and receive 65% of the house when [the son] was 18.  The third proposal was for the house to be sold and the court to decide.  I chose the second option.  I did not obtain the advice of a solicitor due to my financial position.  [The husband] did not pay any monies to the maintenance and upbringing of the children.  He did pay the mortgage of $445 per month.

   47.I am not aware of [the husband’s] financial position at the time of separation or at the time the property orders were made.

   48.At the time the property orders were made my income was from Department of Social Security benefits.  [The husband] paid the mortgage of $445 per month.  We owned our home at [H] subject to the mortgage, a car which [the husband] retained and the contents of the home.

   49.I recall that after I chose the second option, a few months later, [the husband] arrived at my home at [H] with papers.  I signed the papers.  On a later occasion I signed another paper which said I could have legal representation.  [The husband] brought the paper to me and took me to see a Justice of the Peace that he knew in [the local area]. 

   50.We then went to a typewriter or office equipment repair store in Beverley Hills.  I signed a document before the man in the shop who [the husband] knew who was a Justice of the Peace. 

   51.I was aware that I could remain in the house until [the son] turned 18.”

2. On 18 December 2006 I quickly looked at the file and told counsel at the bar table that the only thing on the file was sealed copies of the orders which were the subject of the dispute.  This was incorrect.  There were three documents that were on the file, being a Form 7, the Notice of Address of for Service by the wife and an affidavit by the wife sworn 8 February 1993. Those documents were forwarded to the legal representatives of the parties and I have heard further submissions this morning in relation to matters arising from those documents. 

3. The Form 7 which was completed by the husband was a pleading which was verified by him on 11 February 1993.  It had a section in it entitled “Property”, as follows:-

   “9.  PROPERTY:

   The husband and wife cohabited during the following periods:

   Not applicable

   All the property of each party at the time of the filing of this application is identified and described as to the best of the applicant’s knowledge and ability in the Statement of Financial Circumstances, or affidavit in lieu of that statement, filed with this application.

   The facts relies on be [sic] the applicant in seeking an order under Section 78 of the Act are as follows:

   Not applicable

   The initial financial contribution of each party at the time of the commencement of cohabitation was as follows:

   Not applicable

   The facts relied upon pursuant to paragraphs 79(4)(a) to (d) of the Family Law Act are as follows:

   Not applicable

   The facts relied upon pursuant to paragraph 79(4)(e) of the Family Law Act are as follows:

   Not applicable

   Other relevant facts relied upon by the applicant are as follows:-

   Not applicable.”

4. I have already commented during submissions that what the husband said was that there was nothing that was applicable by way of information of initial financial contribution.  That there was no relevant fact that the Court need know about under s.79(4)(a)-(d), and that there was no relevant fact the Court needed to know about under s.79(3)(e) and there was no other relevant fact the Court needed to know about. 

5. The second document was an affidavit of the wife sworn 8 February 1993.  The form of this document clearly indicates that that was a document prepared in the office of the husband’s lawyer and that is consistent with the wife’s sworn evidence as to how she came to sign that document.  The text of the document is as follows:-

   1.I am the respondent wife herein;

   2.I have reached an agreement with my husband concerning property which has been reduced to writing and executed by the parties;

   3.I understand that I could seek legal advice in relation to the terms of the orders sought but do not wish to do so;

   4.The property settlement is set out in the consent orders executed by the parties;

   5.That I believe it is the best settlement that both my husband and I could agree to;

   6.I therefore respectively request that the court make the orders set out in the short minutes of orders concerning property.  Notwithstanding the fact that I have not instructed a solicitor because I do not wish to do so.

1. The wife signed the document which on its face said that she understood she could seek legal advice that she believed that it was the best settlement that both she and her husband could agree to and notwithstanding that she had not instructed a solicitor she wished to enter into the agreement. 

2. The third document is a notice of address for service signed by the wife on 8 February 1993.  On its face it tells the Court that the wife has received a sealed copy of the application.  There is in fact no evidence before me at all that the wife received a copy of the application and in fact given that the application itself was not filed until after the notice of address for service was signed, I can safely infer that the wife did not have a sealed copy of the husband’s Form 7 at the time she swore her affidavit and signed her notice of address for service. 

3. What flows from this is that the material that was presented to the Court by the husband on his oath upon which the Court made orders was material which was never given to the wife. 

4. The question arises as to whether or not the lack of provision to the wife demonstrates a lack of procedural fairness which derogates from the principles of natural justice.  The right to be heard is an essential characteristic of natural justice.  That requires knowledge on the part of each party of the evidence given and statements made affecting that party, with an opportunity to correct or contradict (see B.Surinder Singh Kanda v Government of the Federation of Malaya [1962] AC 322 at 337; Lisafa Holdings Pty Ltd v Commissioner of Police & Ors (1988) 15 NSWLR 1 at page 22). This court also undoubtedly as a superior court of record has an inherent jurisdiction to set aside orders where there has been a failure to observe the essential requirement of natural justice.

5. It is also an important matter that goes to the issue of whether or not the wife’s application for leave to review out of time would be successful.

6. Given that in order to summarily dismiss the wife’s applications it needs to be demonstrated that the wife’s application cannot possibly proceed.  I conclude that the husband has not convinced me that that is so in the circumstances of this case.  Accordingly I dismissed the husband’s application that the wife’s response seeking orders under s.79A and seeking an extension of time to review orders under r.1.4 be summarily dismissed. 

I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Watts.  

Associate: 

Date:  28.3.07

IT IS NOTED that this judgment for all publication and reporting purposes be referred to as DORFER & DORFER