Duarte & Morse (No 3)
[2023] FedCFamC1A 148
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Duarte & Morse (No 3) [2023] FedCFamC1A 148
Appeal from: Morse & Duarte (No 4) [2023] FedCFamC1F 278 Appeal number: NAA 125 of 2023 File number: SYC 737 of 2014 Judgment of: TREE, WILSON & CAMPTON JJ Date of judgment: 7 September 2023 Catchwords: FAMILY LAW – APPEAL – LEAVE TO APPEAL – Property – Summary dismissal – Where the wife seeks leave to appeal from the primary judge’s dismissal of her application to summarily dismiss and/or permanently stay the husband’s application for property settlement orders – Whether the wife will suffer substantial injustice if leave is refused – Where the fact the wife may be required to litigate the disputed claims is not injustice – Where it is unnecessary to consider the proposed grounds of appeal, although none appeared to enjoy sensible prospects of success – Leave to appeal refused – Appeal dismissed – Costs ordered in a fixed sum. Legislation: Family Law Act 1975 (Cth) s 94AA (repealed)
Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 28, 67, 68
Cases cited: Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170; [1981] HCA 39
Duarte & Morse (No 2) [2022] FedCFamC1A 121
Medlow & Medlow (2016) FLC 93-692; [2016] FamCAFC 34
Morse & Duarte (No 2) [2022] FedCFamC1F 152
Sieger & Department of Communities and Justice [2020] FamCAFC 172
Number of paragraphs: 13 Date of hearing: 29 August 2023 Place: Sydney The Applicant: Self-represented litigant Counsel for the Respondent: Mr Richardson Solicitor for the Respondent: Lander & Rogers ORDERS
NAA 125 of 2023
SYC 737 of 2014FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MS DUARTE
Applicant
AND: MR MORSE
Respondent
ORDER MADE BY:
TREE, WILSON & CAMPTON JJ
DATE OF ORDER:
7 SEPTEMBER 2023
THE COURT ORDERS THAT:
1.The application for leave to appeal is dismissed.
2.Appeal NAA 125 of 2023 is dismissed.
3.That applicant is to pay the respondent’s costs in the sum of $15,000 within 28 days.
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 the pseudonym Duarte & Morse (No 3) has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
TREE, WILSON & CAMPTON JJ:
INTRODUCTION
On 12 April 2023, the primary judge, amongst other things, dismissed an Application in a Proceeding filed on 22 March 2023 (“the wife’s second application”) by Ms Duarte (“the wife”) which sought either summary dismissal or a permanent stay of Mr Morse’s (“the husband”) fifth Initiating Application filed on 24 December 2019 (“the husband’s fifth application”). From that dismissal the wife now seeks leave to appeal, and if granted, appeals.
The husband opposes the grant of leave. For the reasons which follow, leave to appeal is refused.
BACKGROUND
In earlier reasons delivered on 17 March 2022, the primary judge set out a brief history of this protracted litigation (Morse & Duarte (No 2) [2022] FedCFamC1F 152 at [4]–[32]). However for present purposes, all that needs to be said is that in the husband’s fifth application he seeks the transfer to him of a residential property, the title to which is registered in the joint names of the wife and her subsequent partner. The wife opposes the husband’s claim.
On 9 September 2020, the wife filed an Application in a Case seeking, amongst other things, summary dismissal of the husband’s fifth application. That application was dismissed by the primary judge in the 17 March 2022 judgment. The wife’s subsequent application for leave to appeal from that dismissal was unsuccessful (Duarte & Morse (No 2) [2022] FedCFamC1A 121).
Thereafter on 22 March 2023, she filed the wife’s second application, from the dismissal of which this application for leave to appeal arises.
At [6]–[8] the primary judge set out his reasons for dismissing the wife’s second application, as follows:
6.The wife’s basis for a further summary dismissal application was that she contends she has been lied to by the husband and her children about the death of the husband’s father and contends that the Court should infer from this deceit that there has been a windfall in favour of the husband which has been undisclosed, and further, this level of deceit constitutes such an egregious breach of trust that there will be no possibility of cooperative pre-trial processes, which will inevitably cause a denial of procedural fairness to the wife.
7.These matters, as I understood the argument, were said to lead to the conclusion that the husband had no reasonable prospect of success.
8.In my view, none of these arguments have any merit. In my view, the basis for this application is fanciful, and the fact that it has been filed has led to the allocation unnecessarily of judicial time to deal with an application which, on its face, is patently specious. I note that the orders made on 20 March 2023 provided for the parties to exchange further requests for disclosure. If that order had simply been complied with by the wife, she could have requested information concerning the estate of the husband’s father. In any event, the submission was made by the solicitor for the husband that disclosure of the husband’s father’s will had been made on 30 March 2023, and that, in summary, made clear that the entire estate had been left to the husband’s mother.
By her revised proposed Notice of Appeal, the wife propounds no less than eight contended grounds, two of which contain numerous sub-grounds. As a preliminary observation, a court is entitled to be circumspect about the merit of all grounds of appeal when they are so voluminous and assert many different errors in respect of a short first instance judgment such as that under consideration here (Sieger & Department of Communities and Justice [2020] FamCAFC 172 at [20]–[22]).
It is also pertinent to recall ss 67 and 68 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (“FCFCOA Act”) which relevantly provide as follows:
67 Overarching purpose of family law practice and procedure provisions
(1)The overarching purpose of the family law practice and procedure provisions is to facilitate the just resolution of disputes:
(a)according to law; and
(b)as quickly, inexpensively and efficiently as possible.
(2)Without limiting subsection (1), the overarching purpose includes the following objectives:
(a)the just determination of all proceedings before the Federal Circuit and Family Court of Australia (Division 1);
(b)the efficient use of the judicial and administrative resources available for the purposes of the Court;
(c)the efficient disposal of the Court’s overall caseload;
(d)the disposal of all proceedings in a timely manner;
(e)the resolution of disputes at a cost that is proportionate to the importance and complexity of the matters in dispute.
(3)The family law practice and procedure provisions must be interpreted and applied, and any power conferred or duty imposed by them (including the power to make Rules of Court) must be exercised or carried out, in the way that best promotes the overarching purpose.
…
68 Parties to act consistently with the overarching purpose
(1)The parties to a civil proceeding before the Federal Circuit and Family Court of Australia (Division 1) must conduct the proceeding (including negotiations for settlement of the dispute to which the proceeding relates) in a way that is consistent with the overarching purpose.
…
(Emphasis added)
APPLICATION FOR LEAVE
The Full Court decision of Medlow & Medlow (2016) FLC 93-692 (“Medlow”) provides that, in this Court, leave to appeal will only be granted where:
(a)The decision of the primary judge was “attended by sufficient doubt” to warrant its reconsideration; and
(b)If leave were refused, a “substantial injustice” would ensue.
The subsequent repeal of s 94AA of the Family Law Act 1975 (Cth), and its replacement with the substantially similar s 28 of the FCFCOA Act is no reason to doubt the correctness or continued applicability of Medlow.
In this case it is convenient to consider the question of substantial injustice first. As to that, in her Summary of Argument filed 28 July 2023, the wife contended (although not founded on any affidavit evidence):
115.There exists seriously arguable questions about whether the process and quality of reasoning shown by [the primary judge] is sufficient to make out legal justification of his decision to allow the husband to prosecute the Primary Case. It should be afforded appellate consideration because the State must ensure that the wife is only burdened by litigation if legally justified otherwise the wife is prejudiced, which offends the institutional integrity of the court. This is all the more so given that the orders sought in the Primary Case are purely discretionary and not in satisfaction of a cause of action.
116.The wife is self-representing and undertaking a course of legal studies in order to support her in this role. At the same time, she has care of two custodial children aged 7 and 8 who are unrelated to these proceedings. The wife is not aided by relatives as she resides interstate. Preparing and running a trial in these circumstances is highly straining on the wife's physical capacity.
117.The physical strain is made worse by the distress of (a) the threat of being made destitute or significantly financially burdened by a discretionary yet judicially enforcable order unless the High Court invalidates FLA s 79, (b) the threat of further vicarious trauma from having to re-trawl through 3rd party sexual assault claims to prepare and run the trial, (c) the threat of reactivating the trauma of post-separation events in preparing and running the trial, (d) the threat of the dispute dragging on without finality for years through trial and appellate or prerogative actions, and (e) the fact of not being free to pursue recreational or professional activities to any significant degree while burdened by the litigation.
118.The wife has previously deposed to having suffered from serious exhaustion stemming from the litigation, including having experienced risk of death from serious accidents.
119.If the Primary Case is disposed of by summary dismissal or permanent stay, the wife is immediately able to begin the process of healing from the unacceptable prejudices and risks described in the above three paragraphs. Hence the wife should be given the opportunity of an appeallate finding of whether a summary dismissal or permanent stay should be ordered.
120.Even if the wife's state of health was not as strained as it currently is, it would still not be acceptable for the State to be putting the wife through the effort of preparing and running a trial in circumstances where the outcome could not or should not be in her opponent's favour because of case or institutional defects stemming from his deceitful behaviour. She should be freed up to be happy and productive in society using her not insignificant musical, pedagogic and academic talents, and this is in the public interest also.
(As per the original)
Even taken at its highest, and benevolently assuming the facts therein contended to be correct, the injustice which the wife asserts is nothing more than that she may be required to litigate the disputed claims advanced in her second application to trial, with the prospect that she may lose. That is not injustice, and certainly not substantial injustice, particularly as the judgment under appeal is a decision relating to practice and procedure (Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170 at 177). It is therefore unnecessary to consider the proposed grounds of appeal, although we observe that in any event, none appeared to enjoy sensible prospects of success. The wife’s application for leave to appeal is dismissed.
COSTS
In the event the wife’s application for leave was refused, the husband sought costs in the sum of $15,000. The proposed appeal must be dismissed, and leave to bring it refused, such that the wife has wholly failed. We do not accept that the appeal raised issues of public importance. We are satisfied that the claimed sum of $15,000 is reasonable. The wife should pay the husband’s costs as claimed within 28 days.
I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Tree, Wilson & Campton. Associate:
Dated: 7 September 2023
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