Dunnett and Dunnett

Case [2013] FamCA 529


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.
Beck & Beck (2004) 31 Fam LR 467.
Bigg & Suzi (1998) 22 Fam LR 700.
Blair v Curren (1939) 62 CLR 464.
Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd (2006) 236 ALR 720.
C & C [2001] FamCA 1279.
Caddy & Miller (1989) FLC 91-720
Kemeny & Kemeny (1998) 23 Fam LR 105.
Kokl (1981) FLC 91-078.
Lindon v The Commonwealth (No 2) (1996) 70 ALJR 541.
Pelerman & Pelerman (2000) 26 Fam LR 505.
Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589.
Ricci & Jones [2011] FamCAFC 222.
RJ & AJ [2005] FamCA 1075.
Webster v Lampard (1993) 177 CLR 598.

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

  1. That the Application filed 21 November 2011 is dismissed.

  2. 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.

  3. 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

  1. 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…

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AGLC
Dunnett and Dunnett [2013] FamCA 529
Case
[2013] FamCA 529
Decision Date

CaseChat Overview and Summary

In *Dunnett and Dunnett*, Hogan J of the Federal Circuit Court of Australia considered an application by Ms Dunnett seeking to set aside final property orders made in 2008. The application was brought pursuant to section 79A of the *Family Law Act 1975* (Cth). Mr Dunnett opposed the application.

The central legal issue before the court was whether Ms Dunnett had established sufficient grounds to justify setting aside the existing final property orders under section 79A of the Act. This section permits the court to vary or set aside orders where there has been a miscarriage of justice due to fraud, duress, suppression of evidence, or failure to disclose material matters, or by reason of other circumstances.

Hogan J found that Ms Dunnett had failed to demonstrate any of the grounds required by section 79A. The court was not satisfied that there had been fraud, duress, or any other vitiating factor that would lead to a miscarriage of justice. Consequently, the court dismissed Ms Dunnett's application.

In light of the repeated nature of Ms Dunnett's applications and the lack of merit in the present one, Hogan J made orders restraining Ms Dunnett from filing any further applications seeking orders under section 79A without first obtaining leave of the court, pursuant to section 118 of the *Family Law Act 1975* (Cth). Ms Dunnett was also ordered to pay Mr Dunnett's costs fixed at $1,000.00.

Orders

Orders of the court

1. That the Application filed 21 November 2011 is dismissed.

2. 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.

3. 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.

Background

Background to the litigation

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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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