Emmett and Emmett (No. 2)

This case concerned an application by the husband for the summary dismissal of the wife's application to set aside property orders made under section 79A(1)(d) of the *Family Law Act 1975* (Cth). The wife sought to set aside previous property orders on the grounds of exceptional circumstances arising since the making of the orders, relating to the care, welfare, and development of the parties' three children, which she contended would cause her hardship if not varied or set aside. The wife also sought spousal maintenance and child support orders.

The primary legal issue before the court was whether the husband's application for summary dismissal should be granted. This required the court to determine if the wife's application under section 79A(1)(d) was so lacking in merit that it could not succeed, or if it was frivolous, vexatious, or an abuse of process. The court also considered whether there was a serious question of fact or law to be determined at trial.

Justice Carter applied established principles regarding summary dismissal, drawing on cases such as *Bigg v Suzi*, *Pelerman*, and *Webster v Lampard*. These principles establish that summary dismissal is a discretionary power to be exercised rarely and sparingly, requiring the applicant to demonstrate that the opponent's case is "doomed to fail" or lacks a reasonable cause of action. The court must proceed on the basis that the respondent's version of facts will be accepted unless inherently incredible, and a weak case, or one unlikely to succeed, is not sufficient grounds for dismissal. The court noted that the wife's claim involved allegations of hardship due to financial imposts and restraints on earning capacity arising from the change in residence of the children. While acknowledging that a change in residence of children does not of itself constitute exceptional circumstances, and that the timing of such a change can be significant, the court found that the wife's case, while potentially weak, raised arguable questions of fact and law regarding exceptional circumstances and hardship.

Consequently, the court dismissed the husband's application for summary dismissal, finding that there was an arguable case that needed to be determined at trial. The court indicated that the wife had a weak case but not one that was devoid of an arguable basis or that did not require determination by the court.