Duarte & Morse (No 3)

Case [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Family Law Act 1975 (Cth) s 94AA (repealed)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 2014

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

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

  1. On 12 April 2023,…

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AGLC
Duarte & Morse (No 3) [2023] FedCFamC1A 148
Case
[2023] FedCFamC1A 148
Decision Date

CaseChat Overview and Summary

In the matter of Duarte & Morse (No 3), the husband, Duarte, appeals against the refusal of leave to appeal a decision that dismissed his fifth application for the transfer of a residential property, which is registered in the joint names of the wife, Morse, and her subsequent partner. The wife opposes the appeal, arguing that the primary judge correctly refused leave to appeal on the basis that the application was frivolous and vexatious. The Federal Circuit and Family Court of Australia was tasked with determining whether the husband had a reasonable prospect of success on appeal, and whether the appeal raised a question of law of general public importance. The court found that the husband's arguments were fanciful and that there was no reasonable prospect of success on appeal. The court also found that the appeal did not raise a question of law of general public importance. Accordingly, the court refused leave to appeal. The wife's application for costs is dismissed.

Orders

Orders of the court

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Background

Background to the litigation

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]).

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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