Dunnett and Dunnett
[2013] FamCA 529
•15 July 2013
FAMILY COURT OF AUSTRALIA
| DUNNETT & DUNNETT | [2013] FamCA 529 |
| FAMILY LAW – PRACTICE AND PROCEDURE – Summary Dismissal – Res Judicata – Where issues are identical to those dealt with in a prior proceeding – Where there is no reasonable prospect of success – Frivolous or vexatious proceedings – Where the wife is restrained from bringing further application pursuant to s 79A without leave of the Court – PROPERTY – Section 79A Application – Where the application is summarily dismissed – COSTS – Where the wife is ordered to pay costs. |
| Family Law Act 1975 (Cth) s79A, s117, s118. Family Law Rules 2004 (Cth) r10.12. |
| Barton v Armstrong (1973) 2 NSWLR 589. |
| APPLICANT: | Mr Dunnett by his Case Guardian the Public Trustee of Queensland |
| RESPONDENT: | Ms Dunnett |
| FILE NUMBER: | BRC | 3450 | of | 2007 |
| DATE DELIVERED: |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Hogan J |
| HEARING DATE: | 27 May 2013 |
REPRESENTATION
| FOR THE APPLICANT: | Ms Dunnett in person |
| SOLICITOR FOR THE RESPONDENT: | Mr Peter Sheehy | |
Orders
That the Application filed 21 November 2011 is dismissed.
That pursuant to s 118 of the Family Law Act (1975) (Cth) (“the Act”) Ms Dunnett is restrained from filing any further application in which she seeks an order pursuant to s 79A of the Act without first obtaining the leave of the court.
That the Applicant pay the Respondent’s costs fixed in the amount of $1,000.00 by payment to the Trust Account of Peter J Sheehy Solicitor on behalf of the Respondent with such payment to be made by no later than 16 August 2013.
IT IS NOTED that publication of this judgment by this Court under the Dunnett & Dunnett has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT BRISBANE |
FILE NUMBER: BRC 3450 of 2007
| Mr Dunnett |
Applicant
And
| Ms Dunnett |
Respondent
REASONS FOR JUDGMENT
I am asked to determine the Husband’s Application for summary dismissal of the Wife’s Application, filed 21 November 2011 (“the Current Application”), by which she seeks, pursuant to s 79A of the Family Law Act (1975)(Cth) (“the Act”), to vary parts of an Order made, by consent, on 27 November 2006 (“the Consent Order”). The Consent Order disposed of the Husband’s Application, filed 14 September 2005, by which property settlement proceedings has been commenced.
The Current Application is not the first occasion on which the Consent Order has been the subject of applications pursuant to s 79A.
The Consent Order provided, relevantly and in summary, that:
a)the Wife transfer her interest in the former matrimonial home (“the property”) to the Husband;
b)the Wife’s transfer of her interest in the property was subject to her retaining an interest in the same as at one fifth of the present value of the property with such interest to increase or decrease proportionally to the increase or decrease in the value of the property over time: Clause 2 and Clause 5;
c)the Husband was to hold the wife’s interest ‘in trust as an equitable interest in fee simple held under a constructive trust’: Clause 2;
d)the parties would do all things necessary to lodge a consent caveat in respect of the Wife’s equitable interest in the property: Clause 6;
e)the Husband’s ability to further encumber the property was unrestrained, provided that any future encumbrance did not diminish the Wife’s equitable interest in the property: Clause 7;
f)if the property was sold, the Husband would pay to the wife the amount of her one fifth interest in it at the time of sale, less one fifth of the costs associated with sale, and any repairs, improvements or additions considered necessary or appropriate from the date of the Order until the date of sale: Clause 8; and
g)the Husband could, at any time in the future, pay out the wife’s one fifth interest in the property with the value of the property to be determined in the manner prescribed: Clause 9.
After the Consent Order was made, the Husband later applied, pursuant to s 79A of the Act, to vary some of its terms.
That Application was heard by Federal Magistrate Jarrett (as his Honour then was) on 27 November 2007 at which time his Honour:
a)was satisfied that the Wife had been made aware of the proceedings before him, had been notified of them and had chosen not to participate;
b)was ‘satisfied that there was a suppression of evidence on the part of the Wife when the orders for property settlement were entered into between the parties in November 2006’; and
c)was satisfied that, by reason of suppression of evidence, there was a miscarriage of justice because all of the parties’ assets were not before the Court when the Consent Order was made.
His Honour ordered, inter alia, the discharge of Clauses 2,5,6,7,8 and 9 of the Consent Order (“the November 2007 Order”). His Honour’s Reasons for Judgment record that:
a)the Husband did not seek to interfere with the Consent Order in any way other than to deal with the Wife’s entitlement to an equitable interest in the property;
b)the Husband sought that the Wife’s interest be “expunged” and the caveatable interest be dissolved with the effect that the Wife’s entitlement under the Consent Order would be reduced and the Husband’s entitlement correspondingly increased; and
c)in the circumstances before him, that there was nothing “unjust” about such a consequence.
The Wife did not appeal the November 2007 Order.
The consequence of the November 2007 Order was that the Husband received the property free of the Wife’s one-fifth interest in the same.
Approximately 18 months later, by Application filed 11 May 2009 (“the May 2009 Application”), the Wife sought an order pursuant to section 79A of the Act in the following relevant terms:
a)“That the wife’s one-fifth share under order 5 of the original consent order be adjusted to contain the wife’s full entitlement and balance of the matrimonial asset pool inclusive and in respect to the former matrimonial home.”[1]
b)“That the respondent husband pay to the wife within a period of 30 days from the date of final orders the balance of her full entitlement of the matrimonial asset value.”[2]
c)“In default of the payment by the husband in item (4) above, the former matrimonial home… be sold within a six month period and that the equivalent value of the wife’s balance of entitlement to the full asset value be paid to her from the net proceeds of such sale and the procedure for such marketing and sale be determined by further orders.”[3]
[1] Clause 1 page 2 of the wife’s Initiating Application filed 11/05/2009.
[2] Clause 4 page 2 of the wife’s Initiating Application filed 11/05/2009.
[3] Clause 5 page 2 of the wife’s Initiating Application filed 11/05/2009.
It is immediately apparent that, at the time the Wife filed the May 2009 Application, she did not have a one fifth share in the property as her entitlement to the same had been discharged or extinguished as a result of the November 2007 Order. Thus, there was no interest capable of being ‘adjusted’ to contain whatever it was that she asserted was her ‘full entitlement and balance of the former matrimonial asset pool’.
In addition to the terms set out above, the Wife also sought that the Husband file and serve, by way of disclosure, a ‘correct and accurate’ Financial Statement in the manner detailed in her supporting affidavit filed 11 May 2009. This documentation makes it clear that the Wife’s case was that the Husband had failed to disclose certain bank accounts at one or both of the following occasions: the occasion on which the Consent Order was made; or the occasion on which November 2007 Order was made, varying the Consent Order.
The May 2009 Application was set down for hearing of the discrete issue of whether the 2007 Order should be set aside pursuant to s 79A of the Act.
On 8 October 2010, Demack FM (as her Honour then was) dismissed the May 2009 Application and ordered that, within 90 days, the Wife pay the Husband’s costs of and incidental to the same, fixed in the sum of $1063.37 (“the October 2010 order”).
The Wife did not appeal the October 2010 Order.
It is clear from the Ex Tempore Reasons for Judgment given by her Honour that the Wife had raised, before her, the argument that there had been a miscarriage of justice by reason of “fraud, duress, suppression of evidence (including failure to disclose relevant information), the giving of false evidence or any other circumstances.”[4]
[4] Demack FM Reasons for Judgment 8 October 2010 at [19].
Her Honour noted the Wife’s assertion was that, at the time he made the November 2007 Order, Federal Magistrate Jarrett did not have before him evidence about certain funds which the Wife alleged the Husband had but had not disclosed. The Wife asserted that the Husband had failed to disclose:
a)the existence of funds held by him in a bank account which, as at 2006, approximated A$72,000, and €20,000, and £28 pounds; and
b)certain funds that he had obtained by way of redraws between 2000 and 2004 against mortgages which she asserted were received solely by him and for his benefit (“the alleged redrawn funds”).
Her Honour recorded,[5] that the funds referred to in paragraph 16(b) were funds which the wife asserted were predominantly obtained by redraws on mortgages between 2000 and 2004, were received solely for and to the benefit of the husband and which she asserted the husband had retained and failed to disclose either in 2006 or in 2007 before Federal Magistrate Jarrett. Her Honour was not persuaded by the Wife’s arguments in respect of the funds referred to in paragraph 16(b).[6]
[5] Ibid at [22].
[6] Ibid at [26]-[27].
Having made this finding, Her Honour concluded,[7] that the matter in respect of which the wife was asserting there was a suppression of evidence at the time of the making of the Consent Order and the making of the 2007 Order was limited to the funds referred to in paragraph 16(a). She had already found,[8] that such funds were funds which the Husband asserted he had inherited post separation, had existed in 2006 and that he considered to be funds in respect of which the Wife had made no contribution, coming as they did from his family after separation (“the inheritance”).
[7] Ibid at [28] & [33].
[8] Ibid at [21].
I consider it apparent from a reading of paragraphs 20, 21 and 28 to 39 of her Honour’s Reasons for Judgment that, having accepted that the husband did not disclose the inheritance monies in 2006 and 2007, her Honour determined the Wife’s case that the Consent Order and the November 2007 Order should be set aside on that basis. The fact that her Honour was not persuaded, for the reasons she makes clear in the Reasons, to accept the Wife’s case does not mean that her Honour did not determine it. The fact that her Honour reached conclusions adverse to the Wife does not mean that her Honour did not determine the Wife’s case that the Consent Order and the November 2007 Order should be set aside pursuant to s 79A of the Act on the basis of the husband’s failure to disclose the inheritance and the alleged redrawn funds – she clearly did.
On 21 November 2011, some 13 months after the October 2010 Order was made, the Wife filed the Current Application in which she sought, relevantly, an order pursuant to section 79A of the Act that the Consent Order be varied as follows:
a)“That under Order 5 of the Consent Orders 2635/05 dated 27 November 2006 and pursuant to Order 1 thereof, the wife’s one fifth share in respect to the former matrimonial home… be paid out in full by the husband to the wife.”[9]
b)“That the respondent husband pay to the wife within a period of 30 days from the date of final orders the balance of her full entitlement of the former matrimonial home as set out in 5 above.”[10]
c)“In default of the payment by the husband in 4 above, the former matrimonial home… be marketed and sold within a six month period and that the equivalent value of the wife’s balance of entitlement under above be paid to her from the net proceeds of such sale…”[11]
[9] Clause 5 page 2 of the wife’s Initiating Application filed 21/11/2011.
[10] Second Clause 4 page 2 of the wife’s Initiating Application filed 21/11/2011.
[11] Second Clause 5 page 2 of the wife’s Initiating Application filed 21/11/2011.
In reality, the Current Application seeks to return to the terms of the Consent Order and to reinstate the Wife’s one fifth share in the property. Whilst it does not, on its face, refer to a setting aside or variation of the November 2007 Order, that is the reality of that which is sought because without this, the Wife’s position would remain that which it is now – namely, that she does not have a ‘one fifth share’ in the property as such entitlement had been discharged or extinguished as a result of the November 2007 Order.
It is against this background, then, that the Husband seeks, pursuant to Rule 10.12 of the Family Law Rules, summary relief in respect of the Current Application. He does so on a number of alternate bases:
a)that the substance of the wife’s Current Application was the same as the May 2009 Application that was heard and determined by Federal Magistrate Demack in October 2010, such that the principles of estoppel by res judicata should apply because of her action was merged into the judgment; and/or
b)that this court retained no jurisdiction and/or was not able to go behind the order made by Federal Magistrate Demack; and/or
c)that the Current Application is “doomed to fail” and should be dismissed.
The principles which I must apply in determining whether to summarily dismiss the Application are as follows[12]:
a)the power for summary dismissal is a discretionary one;
b)the relief of summary dismissal “is rarely and sparingly provided”;
c)the Husband ( the party seeking summary dismissal) must show that the Application is “doomed to fail” or that, from her material, the Wife lacks a reasonable cause of action or is advancing a claim that is clearly frivolous or vexatious;
d)a weak case or one that is unlikely to succeed is not “sufficient” to warrant dismissal;
e)if there is a serious legal question to be determined, it should ordinarily be determined at a trial;
f)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 pleadings;
g)the issue is not whether the Wife ‘would probably succeed’ in her Application to set aside the Consent Order but whether her material demonstrates that the action should not be permitted to go to trial in the ordinary way because it is apparent that it must fail (i.e. that her Application is ‘doomed to fail’);
h)the guiding principle is doing what is just: if it is clear that the Wife’s case is doomed to fail, her action should be dismissed so as to protect the Husband from being further troubled, the Wife from further cost 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.
[12] See: Bigg & Suzi (1998) 22 Fam LR 700; Pelerman & Pelerman (2000) 26 Fam LR 505; Beck & Beck (2004) 31 Fam LR 467;
Further, in determining whether the Applicant has no reasonable prospect of successfully prosecuting the claim to set aside the Consent Order, I must exercise caution in making such a finding where “contested evidence might reasonably be believed one way or the other so as to enable one side or the other to succeed”.[13]
[13] Rares J in Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd (2006) 236 ALR 720 at [45] as referred to in Ricci & Jones [2011] FamCAFC 222.
It is also clearly established[14] that, in determining the application for summary dismissal of the Current Application:
a)I must have regard only to the Wife’s material and material relied upon by her; and
b)I must proceed on the basis that the Wife’s ‘version of the facts’ is that which would ultimately be accepted at a trial.
[14] Webster & Lampard (1993) 177 CLR 598; Lindon v The Commonwealth (No 2) (1996) 70 ALJR 541 per Kirby J at 544-5; Bigg & Suzi (1998) 22 Fam LR 700; Beck & Beck (2004) 31 Fam LR 467..
Further, in order to determine and understand the substance of the claim which the husband seeks should be summarily dismissed, it is, of course, necessary in a jurisdiction such as this, where there are no pleadings, to have regard to the affidavit material relied upon.
The Husband submitted that :
a)the Current Application and the May 2009 application are not comparably different;
b)the Wife raised, in her affidavit material relied on before Federal Magistrate Demack in support of the May 2009 Application, assertions of non-disclosure by the husband;
c)this “cause of action” was determined by her Honour who made an Order dismissing the May 2009 Application;
d)the Wife did not lodge an appeal against such Order nor has she filed an application seeking leave to appeal out of time;
e)the Wife’s affidavit material in support of the Current Application again raises the same allegations of non-disclosure by the Husband as were considered and dealt with by Federal Magistrate Demack – the content of the affidavit is strikingly similar to that relied on before Federal Magistrate Demack and it appears to be a “cut and paste” to a large degree of the earlier affidavit;
f)the Wife’s case is ‘doomed to fail’ because of the operation of the principle of res judicata;
g)the only course open to the Wife in seeking to achieve the Orders sought by her in the Current Application would have been to appeal the Order made by Federal Magistrate Demack.
The Wife submitted that there was nothing sinister or adverse that should be drawn from the striking similarity in the affidavit material relied on by her in support of the May 2009 Application and the Current Application because what she had said earlier in her material (in 2009) was ‘the truth’ and, thus, it was unsurprising that it continued to re-appear before the Court.
Such submission confirms the point made by the Husband: namely, that there is no difference of substance in the material considered by Federal Magistrate Demack and that relied on as the basis for the Current Application.
The Wife opposes the Husband’s Application for summary dismissal on the following bases:
a)it is an attempt by him to deny her access to justice, and to a just and equitable settlement in a marriage under “extenuating circumstances”;
b)her 79A application asserts material non-disclosure by the husband between, “the time of the second separation and the consent orders”, and, “continuously in the husband’s own 79A application”;
c)that , as the November 2006 Order was “ex parte”, her current application should not be dismissed as vexatious or an abuse of process because she is pursuing a just and equitable property settlement arising out of her marriage of 30 years which included “extenuating circumstances”;
d)the court could not conclude that she has no reasonable prospects of successfully prosecuting her claim and, in fact, would be persuaded that she has an arguable case for a claim pursuant to section 79A(1)(a);
e)the husband failed to disclose “vital financial information” and “vital changed circumstances” which he was “well aware” would otherwise impact directly on the consent orders of November 2006, such that those orders must be set aside.
I immediately record that the Wife’s use of the term ‘ex parte’ is incorrect in that Federal Magistrate Jarrett and, subsequently, Federal Magistrate Demack both determined that the Wife had been properly served and given notice of the hearing before Federal Magistrate Jarrett and determined not to appear before Federal Magistrate Jarrett.
The Wife particularises[15] her allegations of the Husband’s material non-disclosure in her outline of argument, marked as Exhibit 2 in the proceeding, as being in relation to funds, the inheritance funds and asserted dissipation of joint assets. She also raises allegations about the Husband’s conduct during and after the marriage which she asserts amounted to domestic violence and economic abuse.
[15] Exhibit 2 paragraph 14.
The wife also asserts[16] that she has a reasonable cause of action pursuant to s 79A (1)(a) of the Act because the Husband “did not disclose relevant information, namely that it was the husband’s intention to settle the new wife (remarriage of the husband not disclosed by the husband for consideration by the former wife of 30 years) and the entire new family into the former matrimonial home after the consent orders were made.”
[16] Exhibit 2 paragraphs 32 & 34.
Whilst this matter is, seemingly, of considerable relevance to the mind of the Wife, it is not relevant to any consideration of an application pursuant to section 79A.
In Blair v Curran (1939) 62 CLR 464, Dixon J said, at p 531:
A judicial determination directly involving an issue of fact or of law disposes once for all of the issue, so that it cannot afterwards be raised between the same parties or their privies. The estoppel covers only those matters which the prior judgment, decree or order necessarily established as the legal foundation or justification of its conclusion, whether that conclusion is that a money sum be recovered or that the doing of an act be commanded or be restrained or that rights be declared. The distinction between res judicata and issue estoppel is that in the first the very right or cause of action claimed or put in suit has in the former proceedings passed into judgment, so that it is merged and has no longer an independent existence, while in the second, for the purpose of some other claim or cause of action, a state of fact or law is alleged or denied the existence of which is a matter necessarily decided by the prior judgment, decree or order.
In Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589:
a)Gibbs C.J., Mason and Aickin JJ said, at p.597, “….The rule as to res judicata comes into operation whenever a party attempts in a second proceeding to litigate a cause of action which has merged into judgment in a prior proceeding.”
b)Murphy J. said, at p.605: “These notions of res judicata and issue estoppel are founded on the necessity, if there is to be an orderly administration of justice, of avoiding re-agitation of issues, and of preventing the raising of issues which could have been and should have been decided in earlier litigation.”
c)Brennan J. said, at p.611: “The foundation of the rule, whether it be termed res judicata or cause of action estoppel or judgment recovered, is the merging of the cause of action in the judgment” and referred to Blair v Curran where, at p.532 Dixon J said ‘the very right or cause of action claimed or put in suit has….passed into judgment, so that it is merged and has no longer an independent existence…..”
In Caddy & Miller (1986) FLC 91-720, the Full Court said, at p.75,233, in discussing the doctrine of res judicata:
It is well summarised in para. 1 and 2 of the introduction to Spencer Bower & Turner’s volume:
“ a final judicial decision pronounced by a judicial tribunal having competent jurisdiction over the cause or matter in litigation, and over the parties thereto, disposes once and for all of the matters decided so that they cannot afterwards be raised for re-litigation between the same parties or their privies…The judicial decision estops or precludes any party to the litigation from disputing, against any other party thereto, in any later litigation, the correctness of the earlier decision in law and fact. The same issue cannot be raised again between them, and this principle extends to all matters of law and fact which the judgment, decree or order necessarily established as the legal foundation or justification of the conclusion reached by the court.”
The doctrine reflects the general interests of the community in determination of disputes and in the finality and conclusiveness of judicial decisions, together with the right of the individual litigant to be protected from multiple suits for the same cause. It is part of the common law, and parties who go to a court to effect a resolution of a dispute are bound by its operation and consequences…
If this court be seized of an application under section 79 it has jurisdiction to and must decide it according to law. However, that law includes the rule that a party is precluded from adducing evidence in a case, the object or effect of which is to dispute against another party, the correctness or merits or an earlier decision in proceedings between the same parties disposing of the same cause. Nor will an earlier decision be treated as wanting in finality if its incompleteness results from a party’s failure to put forward his own case when he had the opportunity to do so.
In C & C [2001] FamCA 1279, the Full Court noted that a party promoting res judicata as a defence must show that: [17]
a)the decision was judicial and pronounced;
b)the court had jurisdiction over the parties and the subject matter;
c) the decision was final and made on the merits;
d)the decision determined the same questions that were raised in the subsequent litigation; and,
e) the parties to the later litigation were parties to the former litigation.[18]
[17] C & C [2001] FamCA 1279 at [110] per Lindenmayer, Holden and Watt JJ
[18] See: C & C [2001] FamCA 1279; Kemeny & Kemeny (1998) 23 Fam LR 105; RJ & AJ [2005] FamCA 1075.
It is clear and I find that:
a)the determination of Federal Magistrate Demack in October 2010 was judicial and pronounced;
b)her Honour had jurisdiction over the parties and the subject matter;
c)her Honour’s decision was final and was made on the merits following a contested hearing;
d)the May 2009 Application which was determined by her Honour was based on the same allegations of non-disclosure as are raised in the Current Application such that the same question is raised in the subsequent litigation;
e)the parties to the Current Application are the same as the parties to the May 2009 litigation.
I consider that, insofar as the Wife’s claim pursuant to section 79A rests upon assertions of non-disclosure by the Husband about funds and inheritance monies, the matter has been determined by Federal Magistrate Demack such that it has been disposed of once and for all.
The Wife raised ‘duress’ as a potential basis for her s79A Application. This issue was not before Federal Magistrate Demack at the time her Honour made the October 2010.
The Wife’s evidence as to ‘duress’ is as follows:
The negotiations in respect of the original consent order November 2006 was conducted by lengthy and extremely difficult telephone conversations with the intoxicated husband residing overseas. I could not instruct a solicitor to handle matters on my behalf, as the husband would carry out his threat and not pay the now substantial mortgage on the matrimonial home from the joint funds which the husband had seized from late 1999-2005.[19]
I could not afford to pay the required $1400 or so a month in addition to all the other bills and maintenance and living expenses from the earnings I had and often found that I could not afford to eat let alone have any other life, with commitments for my daughter and maintenance and living expenses being a priority.[20]
[19] Wife’s Affidavit filed 23 April 2013, Paragraph 41.
[20] Wife’s Affidavit filed 23 April 2013, Paragraph 42.
I do not consider there to be any other evidence relevant to the issue of whether the wife was under duress at the time she signed the Consent Order.
The concept of duress insofar as that term is used in section 79A(1)(a) was the subject of discussion by Jerrard J in Pelerman and Pelerman [1999] FamCA 786 delivered 30 April 1999. On appeal on a point other than his Honour’s dealing with the duress argument, the Full Court stated its agreement with his Honour’s first instance statement of principle.
His Honour referred to Kokl (1981) FLC 91-078 at 76,557 where Gee J said that duress in the sense in which it appears in s 79A meant “the compulsion of a person by physical or mental harm”, and to a broader view of duress as described in Barton v Armstrong (1973) 2 NSWLR 589 at 631 and 634 as recognised and developed in equity and as requiring an applicant to show that some illegitimate means of persuasion had been used. His Honour then, I consider, formulated a statement of principle thus: it would not be open to a court to find duress where the totality of all of the circumstances arguably capable of demonstrating illegitimate means of persuasion and subjection of the alleging party to an improper motive for action did not lead that party to enter into the Consent Order.
I consider that, accepting the Wife’s evidence as set out above, it would not be open to a court to find that she was subjected to duress, for s 79A purposes, at the time she entered into the Consent Order. Further, I rely on the statement of principle set out in paragraph 37 above to the effect that Federal Magistrate Demack’s decision should not be ‘treated as wanting in finality if its incompleteness results from [the Wife’s failure] to put forward her own case when she had the opportunity to do so.’
There is clearly no question of duress at the time that the matter was before Federal Magistrate Jarrett in 2009 or Federal Magistrate Demack in 2010.
I conclude, therefore, that the Wife’s s 79A Application founded on an assertion of duress has no reasonable likelihood of success.
The wife also asserts[21] that:
After consent orders were made in November 2006, the husband pursued intense intimidation tactics toward the wife to pressure her into rescinding the one-fifth equitable interest she held in the joint matrimonial home under consent orders of 27 November 2006.
27. When these measures failed to bring the desired result (s) the husband pursued the same objective by using information he was fully aware of and had in his possession, the husband resorted to court applications accordingly.
[21] Exhibit 2 paragraph 26.
The September 2007 Order was made by Federal Magistrate Jarrett (and not by the parties by consent). Whatever behaviour the Husband is asserted to have engaged in after the Consent Order is not relevant to the Wife’s s 79A Application founded on an assertion of duress.
The wife also seeks[22] to rely on s 79A(1)(d) of the Act. Given the passage of time since the making of the Consent Order, the history as outlined above and my conclusion, in any event, that such an assertion is so relevant to the matters that the Wife has sought to agitate since the May 2009 Application that it is unreasonable for her not to have relied on it in the proceedings before Federal Magistrate Demack[23], I consider that the Current Application has no reasonable likelihood of success on this basis.
[22] Exhibit 2 paragraph 22.
[23] See, for example, the majority in Port of Melbourne Authority v Anshun (1981) 147 CLR 589, 603.
The Wife also seeks, as outlined in the Current Application, an order that the husband pay to her ‘relief in the form of compensation in the sum of $50,000 (fifty thousand dollars) in respect of personal and financial loss of all household furniture, furnishings, personal items and jewellery disposed of by the Husband.’
I understand this claim to arise out of her assertion, accepted for the purpose of the current application for summary relief, that the husband disposed of household furniture, furnishings, personal items and jewellery following the making of the November 2007 Order.
Without property proceedings on foot, there is no power to make an order for the payment by the husband of monies to the Wife. In addition, after the November 2007 Order, the Husband was at liberty to act in so far as the household furniture, furnishings, personal items and jewellery as he saw fit. I consider that the Wife has no reasonable prospects of succeeding on her claim for ‘compensation’.
I consider, on the basis of the reasoning outlined above, that the Wife has no reasonable likelihood of succeeding on the Current Application and I dismiss the same.
Husband’s Application For Order Pursuant to Section 118 of the Act
Section 118 of the Act is in the following terms:
The court may, at any stage of proceedings under this Act, if it is satisfied that the proceedings are frivolous or vexatious:
(a) dismiss the proceedings; and
(b) make such order as to costs as the court considers just.
I consider the law relevantly to be as follows:
(a)it is a condition precedent to the making of an order restraining a person, without leave of the court, from instituting proceedings that the court must first be satisfied that the proceedings before it are frivolous or vexatious;[24]
(b)the power to make such an order must be used sparingly, it being a serious thing to keep a person from access to the courts.[25]
[24] DJC v SJS & Anor (2005) 24 Fam LR 329, 338 & 339.
[25] Re Attorney-General (Commonwealth); ex parte Skyring (1996) 135 ALR 29, 31-32 per Kirby J.
It is clear, therefore, that prior to making such an order I must be persuaded and satisfied that the proceeding before me, namely the Current Application for an order pursuant to section 79A, is frivolous or vexation.
It was submitted, on behalf of the husband, that I would be persuaded of this because, as found by me, the Current Application is, for all intents and purposes, the same as the May 2009 Application which was determined by Federal Magistrate Demack in October 2010.
Further, the Husband’s legal representative submitted that the husband is a person of limited means and, in essence, as such, should be ‘protected’ from the costs impost created by the Wife’s continued attempts to re-litigate that which has already been determined.
It was further submitted that the terms of the order sought by the Husband do not prevent the Wife from ‘accessing’ the court but require that she first satisfy the Court of prima facie grounds upon which she would seek to revisit any application pursuant to s 79A before the Husband is put to the cost and inconvenience of responding to the same.
The Wife resists the making of such an order. She submits that the proceedings before me are not frivolous or vexatious but rather an attempt by her to obtain a just and equitable property settlement arising out of a relationship that spanned nearly 30 years duration.
Given:
a)the history of the matter as outlined above including that there have been two occasions on which s 79A Orders adverse to the Wife have not been challenged by her on appeal; and
b)my finding that the Current Application was, for all intents and purposes, an attempt by the Wife to re-litigate that which had been disposed of by Federal Magistrate Demack in 2010; and
c)my finding that the issue of ‘duress’ was one upon which the Wife had no reasonable likelihood of success; and
d)my conclusion that any claim based on s 79A(1)(b) of the Act was so relevant to the proceedings before Federal Demack that it was unreasonable of the Wife to fail to raise it at that time yet seek to raise it before me,
I am persuaded that the Current Application is frivolous or vexatious. I am persuaded that the term of the Order as sought by the Husband[26] is just in that it balances the general undesirability of preventing a person such as the Wife from accessing the court with the similar general undesirability of requiring a person, such as the Husband, to be put to the expense of meeting, again, an application which has previously been heard and determined.
[26] Husband’s Response to Initiating Application filed 1 February 2013, paragraph 2.
Costs
The Husband sought an Order that the Wife pay his costs of and incidental to the Current Application. The Wife opposed such order.
Whilst s 117(1) of the Act prescribes, as the starting point for a consideration of any application for a costs order, that parties to proceedings in the court bear their own costs, the court may, pursuant to s 117(2) of the Act, if it is of the opinion that there are circumstances which justify it in so doing, order that a party pay the costs of another party.
It is submitted by the Husband’s legal representatives that he is a person of limited means whose net assets of about $289,609.00 are administered on his behalf by the Public Trustee. Whilst he has an annual income, from a combination of Centrelink entitlements and some investments, of $27,441.00, his yearly expenses are in the sum of $36,879.00 per year. Clearly, his capital is reduced by approximately $9,000.00 per year.
The Wife submits that her financial circumstances are poor also. I note her information to me at the time of the hearing that she was about to travel overseas. I note the findings about her assets made by Federal Magistrate Demack in October 2010 and the contents of her Financial Statements filed on 21 November 2011 and 23 April 2013.
It is clear from a perusal of those Financial Statements that the Wife’s financial position is modest.
The Wife has been wholly unsuccessful in seeking to prosecute the Current Application. The Husband has been wholly successful in his application for summary disposal of the Current Application.
In correspondence dated 19 November 2012[27] the husband’s legal representatives informed the Wife that:
a)their client’s view was that her s 79A Application had no merit; and
b)no grounds to amend the existing order pursuant to s 79A had been made out; and
c)she was invited to withdraw the application before 10 December 2012; and
d)if the Application was not withdrawn, they held instructions to seek costs against her.
[27] Affidavit of Vanessa Helen Moyle filed 26 April 2013, Annexure VHM-1.
By correspondence dated 30 November 2012[28] the Wife informed the Husband, inter alia, that she was not in a financial position to pay any of his costs. She did not, however, withdraw the Current Application.
[28] Affidavit of Vanessa Helen Moyle filed 26 April 2013, Annexure VHM-2.
By correspondence dated 7 March 2013[29], the Husband’s solicitors reiterated the matters set out above and repeated the invitation to withdraw the Current Application prior to 23 May 2013. Again the Wife determined not to act in such a manner.
[29] Affidavit of Vanessa Helen Moyle filed 26 April 2013, Annexure VHM-3.
It is, I consider, no answer to the Husband’s application for costs that the Wife reiterates that she was ‘simply seeking a just and equitable settlement’ after the end of a nearly 30 year relationship. She was told on two separate occasions, well before the matter was heard by me, of the possible consequences should she determine to continue to prosecute it in the face of the Husband’s position, correctly formulated given my findings and determination as set out above, that she had not made out a ground for the exercise of the discretion to set aside the existing Order. Further, much of the Current Application was an attempt to re-litigate that which had already been determined by Federal Magistrate Demack in October 2010.
For the reasons outlined above, I am of the opinion that the circumstances discussed above justify the making of an order that the Wife pay the Husband’s costs of the Current Application.
There is no evidence before me as to the quantum of the costs sought by the Husband. However, given the material before me, the written Submission prepared by the Husband’s legal representatives and the time taken at court for the hearing of the matter, I consider it more likely than not that the Husband’s legal representatives were engaged in work for the Current Application for no less than 5 hours. Having regard to Schedule 3 of the Family Law Rules which allows the sum of $218.60 per hour, I consider the appropriate order to be one which requires the Wife to pay the Husband’s costs fixed in the amount of $1,000.00.
Whilst I appreciate that such an amount is highly unlikely to represent the Husband’s costs of the Current Application, even on a party/party basis, I consider that it is more appropriate, in the circumstances before me, that I fix the amount of costs rather than leave them to be determined via the procedure provided by the Family Law Rules 2004.
I so order.
I certify that the preceding eighty-six (77) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on 15 July 2013.
Associate:
Date: 15 July 2013
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