Duarte & Morse (No 2)

Case [2022] FedCFamC1A 121

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1) APPELLATE JURISDICTION

Duarte & Morse (No 2) [2022] FedCFamC1A 121

Appeal from: Morse & Duarte [2022] FedCFamC1F 152
Appeal number(s): NAA 63 of 2022
File number(s): SYC 737 of 2014
Judgment of: AUSTIN, WILLIAMS & RIETHMULLER JJ
Date of judgment: 4 August 2022
Catchwords: FAMILY LAW – APPEAL – LEAVE TO APPEAL – Property – Where the wife seeks leave to appeal from the dismissal of her application to summarily dismiss the husband’s application for property settlement orders – Apprehended bias – Where the transcript and reasons for judgment demonstrate the primary judge’s considerable care and patience to understand and address the substantive arguments of the wife – Estoppel – Where there can be no res judicata or other form of estoppel where no final judgment exists – Reasonable prospects of success – Where there is no question the husband has an arguable case – Offer to settle – Where the argument that the offer was not capable of acceptance is rejected – Abuse of process – Where onerous and distressing litigation does not mean it is vexatious or an abuse of process – Where none of the grounds relied upon by the wife warrant a grant of leave to appeal – Where there could be no substantial injustice in refusing leave to appeal – Leave to appeal refused – Appeal dismissed – No order as to costs.
Legislation:

Family Law Act 1975 (Cth) Pt VIIIA, ss 79, 80, 114

Federal Circuit and Family Court of Australia Act2021 (Cth) s 28

Federal Court and Federal Circuit and Family Court Regulations 2012 (Cth) reg 4.02
Cases cited:

Charisteas v Charisteas (2021) 64 Fam LR 94; [2021] HCA 29

Duarte and Anor & Morse (2019) FLC 93-902; [2019] FamCAFC 93

Ebner & Pappas (2014) FLC 93-619; [2014] FamCAFC 299

Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63

Frost (Deceased) & Whooten (2018) FLC 93-860; [2018] FamCAFC 177

Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48

Medlow & Medlow (2016) FLC 93-692; [2016] FamCAFC 34

Morse & Duarte (2017) 58 Fam LR 131; [2017] FamCA 1039

Morse & Duarte [2022] FedCFamC1F 152

Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd (1981) 148 CLR 457; [1981] HCA 7

Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589; [1981] HCA 45

Stanford v Stanford (2012) 247 CLR 108; [2012] HCA 52

Sykes & Sykes (1979) FLC 90-652; [1978] FamCA 61
Number of paragraphs: 46
Date of hearing: 1 July 2022
Place: Heard in Sydney, delivered in Newcastle
The Applicant: Litigant in person
Solicitor for the First Respondent: Marrickville Legal Centre
The Second Respondent: Did not participate

ORDERS

NAA 63 of 2022
SYC 737 of 2014

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION
BETWEEN:

MS DUARTE

Applicant
AND:

MR MORSE

First Respondent

MR TOLMAN

Second Respondent

ORDER MADE BY:

AUSTIN, WILLIAMS & RIETHMULLER…

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AGLC
Duarte & Morse (No 2) [2022] FedCFamC1A 121
Case
[2022] FedCFamC1A 121
Decision Date

CaseChat Overview and Summary

In the case of Duarte & Morse (No 2), the wife, Ms Duarte, sought leave to appeal from the dismissal of her application to summarily dismiss the husband’s application for property settlement orders. The husband, Mr Morse, and a second respondent, Mr Tolman, were also parties to the litigation. The matter was before the Federal Circuit and Family Court of Australia, Division 1 Appellate Jurisdiction, which was asked to determine whether Ms Duarte's appeal should proceed to a full hearing.

The court considered several legal issues. Firstly, it assessed whether the primary judge had displayed bias or a failure to address Ms Duarte's arguments properly. Secondly, it examined the possibility of estoppel or res judicata in relation to the offer to settle. Thirdly, the court evaluated the merits of the husband's application for property settlement orders and whether it had reasonable prospects of success. Finally, it considered whether the proceedings amounted to an abuse of process.

The court found that the primary judge had shown considerable care and patience in understanding and addressing Ms Duarte's arguments, thus dismissing any claims of bias. There was no res judicata or estoppel as no final judgment had been made. The husband had an arguable case for property settlement, and the offer to settle was considered capable of acceptance. The court ruled that the litigation, although onerous and distressing, was not vexatious or an abuse of process. None of Ms Duarte's grounds for appeal warranted a grant of leave, and there would be no substantial injustice in refusing the appeal.

In conclusion, the court refused leave to appeal and dismissed the appeal. The appeal was dismissed without costs, as neither party had incurred costs in the appeal or sought a costs order.

Orders

Orders of the court

NAA 63 of 2022

SYC 737 of 2014

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

MS DUARTE

Applicant

AND:

MR MORSE

First Respondent

MR TOLMAN

Second Respondent

ORDER MADE BY:

AUSTIN, WILLIAMS & RIETHMULLER JJ

DATE OF ORDER:

4 AUGUST 2022

THE COURT ORDERS THAT:

1. The applicant’s oral application for leave to appeal is refused.

2. Notice of Appeal No. NAA 63 of 2022 is 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 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).

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The wife’s grounds of appeal relating to claims of abuse of process have no merit.CONCLUSION None of the grounds relied upon by the wife warrant a grant of leave to appeal from interlocutory orders. The wife has not established that there would be any substantial injustice in refusing leave to appeal, even if the findings of the primary judge were in error with respect to the offer made by the husband. None of the matters raised would justify summarily dismissing the husband’s application for property settlement orders which has been remitted by the Full Court for a new trial. Leave to appeal must therefore be refused and the appeal dismissed. As neither party has incurred any costs in the appeal, neither sought a costs order.

Ratio Decidendi

Legal Principle Established

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