Erikson and Erikson

[2019] FamCA 612

FAMILY COURT OF AUSTRALIA

ERIKSON & ERIKSON [2019] FamCA 612

FAMILY LAW – PRACTICE AND PROCEDURE – Application – Dismissal or Striking Out – Summary Dismissal – where the parties entered into consent orders in relation to parenting and property – where the wife shortly after filed an Initiating Application seeking for the consent orders to be discharged – where the husband was seeking summary dismissal of the wife’s Initiating Application – where orders are accordingly made for the wife’s application to be dismissed – where the wife originally alleged that the she did not provide her consent to the orders and that the signatures purporting to be hers on various documents, suggesting consent on her part, were forgeries – where a single expert was appointed to prepare a report in relation to the authenticity of the signatures purporting to belong to the mother – where the single expert determined with a high degree of certainty that the signatures belonged to the mother – where following the release of the report the mother then conceded that the signature was hers however stated that she did not recall signing the document – where an application for security of costs was filed by the husband – where reasons and orders were delivered providing the wife to pay the husband $30,000 – where the wife has not complied with orders to provide security of costs – where the court has the power to dismiss proceedings in which a party has no reasonable prospects for success – where the evidence of the wife relating to the signatures is not credible - where the wife has no reasonable prospects of success.

Family Law Act 1975 (Cth) s45A
Family Law Rules 2004 (Cth) Rule 10.12, 10.14

APPLICANT: Ms Erikson

RESPONDENT: Mr Erikson

FILE NUMBER: NCC 3119 of 2016

DATE DELIVERED: 30 August 2019

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Cleary J

HEARING DATE: 13 August 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT: Not Applicable

THE APPLICANT: Self-Represented

COUNSEL FOR THE RESPONDENT: Not Applicable

SOLICITOR FOR THE RESPONDENT: Katie Smith Solicitor

Orders

1. The Initiating Application of the wife filed on 18 July 2017 in the Federal Circuit Court of Australia is dismissed.

2. All other outstanding applications and responses are dismissed with the exception of the husband’s application for costs.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Erikson & Erikson has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A (b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: NCC 3119 of 2016

Ms Erikson

Applicant

And

Mr Erikson

Respondent

REASONS FOR JUDGMENT

Introduction

1. By his Application in a Case filed 11 July 2019 in this Court, Mr Erikson (“the husband”), seeks summary dismissal of an application made by his estranged wife, Ms Erikson, (“the wife”).  That application was filed by the wife in the Federal Circuit Court (“FCC”) on 18 July 2017.  By his response document filed on 25 October 2017 the husband sought dismissal of that application. 

2. After an unusual sequence of events, the husband has again pressed for summary dismissal of the application of the wife.  It has taken two years for a court to be in a position to deal with the application of the husband. 

Brief History of Relevant Events

1. The parties began living together in 2006 and married early in the following year. Two children were born to the parties whilst they were together.  The parties separated on a final basis in January 2012, when the wife was pregnant with the parties’ third child.  There is no evidence before me as to whether the parties are still married or divorced.

Consent Orders

1. In late 2016 the parties filed an application in this Court for the approval of consent orders.

2. Early in 2017 the wife withdrew her consent prior to those orders being made.

3. All outstanding applications were dismissed at that time. 

4. On 27 April 2017 the parties again filed in this Court an application for approval of consent orders.  The orders related both to property and to parenting. The applications were signed and dated 28 March 2017.  Annexures with signed certificates were also signed and filed.

5. The financial orders provided as follows: within 30 days the father to pay the mother $86,000, mother to vacate property on settlement and both parties entitled to live in the home until that settlement. 

6. In respect of parenting there were agreed orders for equal-shared parental responsibility, that the three children live with the mother and spend time with the father on alternate weekends, from Thursday to Sunday.  There were other orders in respect of specific issues.

June 2017 Orders

1. On 1 June 2017 the proposed consent orders were made by a registrar of this Court.  The orders will be referred to as “the June 2017 orders”.

Fresh Application

1. On 18 July 2017 the wife filed a fresh Initiating Application, this time in the FCC.  Her proposed orders were for discharge of the June 2017 orders and for different orders in respect of both parenting and property.  The wife also filed a Notice of Risk at that time, alleging past verbal and physical abuse of her by the husband.

2. The husband paid the relevant cash sum of $86,000 to the wife soon after the fresh application had been filed.  That payment was approximately two or three weeks late pursuant to the nominated date in the orders. 

3. Despite the payment being made the wife has not vacated the property.  She has remained living in the home with the children.  The husband moved out of the home and has continued to pay the mortgage payments for the past two years.

4. On 25 October 2017 the husband filed his Response, seeking dismissal of the wife’s fresh application and costs, probably, based on the fact that the application had been made approximately five weeks after the final consent orders were made.

5. The day after the Response document of the husband was filed, a judge of the FCC transferred the matter to this Court, in my view, appropriately, given that the June 2017 orders had been made in this Court, but mainly because of a controversial assertion made at that time by the wife.  The notation to the order for transfer was as follows:

   B.The Applicant Mother alleges that she did not provide consent to the orders made on 1 June 2017 and alleges that it is not her signature that appears on the Minute of Consent Orders annexed as “exhibit 2” to the orders of 1 June 2017.[1]

   [1] Federal Circuit Court Order dated 26/10/2017

6. On 28 February 2018 the proceedings came before a judge of this Court.[2]  A single expert, document-examiner, was appointed: These orders were as follows:

   [2] Family Court of Australia Order dated 28/02/2018

   [1]Ms B is appointed as the single expert witness to prepare a report in relation to the authenticity of the signatures purporting to be those of the mother on the following documents:

   a.The Application for Consent Orders signed on 28 March 2017 and filed on 27 April 2017;

   b.The Annexure to Proposed Consent Parenting Order signed on 28 March 2017 and filed on 27 April 2017; and

   c.The Minutes of Consent Orders signed on 28 March 2017, comprising Exhibit 2 exhibited on 1 June 2017.

   [2]The parties must within seven days confer for the purpose of agreeing on the letter of instructions to be provided to the single expert.

   [3]If the parties do not agree on the letter of instructions to be provided to the expert, then at a further procedural hearing before the Court each party must provide to the Court a draft letter of instructions.

   [4]Each party has liberty to apply to relist the matter on seven days’ notice for further procedural orders.

   [5]The proceedings are adjourned until 9:30 am on Thursday, 3 May 2018, for further procedural directions.

   [6]Leave is granted to the parties to approach the Registrar for consideration of any further order enabling documents on the Court file to be uplifted for the purposes of examination by the single expert witness.

   NOTATION

   A.The Registrar made final orders between the parties under both Parts VII and VIII of the Family Law Act on 1 June 2017 on the basis that the orders were the subject of valid and informed consent by both parties. The mother alleges that the signatures purporting to be hers on various documents, suggesting consent on her part, are forgeries. The parties agree upon the appointment of a handwriting expert to proffer evidence on the issue.

7. On 14 May 2018 by consent the solicitor for the wife was given leave to uplift relevant parts of the court file for delivery to the single expert.

8. By 2 July 2018 the single-expert report had not been completed.

The Single Expert Report

1. In a report dated 10 September 2018 the single expert provided her expert opinion to a high degree of certainty. The two propositions considered for each questioned signature were as follows:

Proposition 1

1. The questioned signature was written by the writer of the Erikson specimens. 

Proposition 2

1. The questioned signature was written by a person other than the writer of the Erikson specimens. 

Conclusion of Single Expert Report

1. The single expert concluded as follows:

   Given the complexity of the signatures, on the basis of the documents submitted, with respect to each questioned signature, I am of the opinion that the observations provide extremely strong support in favour of proposition P1 over proposition P2.  I concluded that each of the questioned signatures on Q1, Q2 and Q3 were written by the writer of the Erikson specimens (Please refer to the conclusion-terminology table at appendix E. The conclusion expressed here is the first category in that table.)[3]

   [3] Report of Ms B dated 10/09/2018 page 2 - Annexure ‘A’ of the Affidavit of Ms B filed 28/09/2018

2. On 28 September 2018 the single-expert report was annexed to an affidavit of the husband and was filed in Court.

3. On 30 October 2018 the solicitor for the mother signed a Notice of Ceasing to Act, which was soon after filed.  The wife has been legally represented intermittently since that time.

4. On 22 October 2018 the proceedings were transferred to me. 

Application by Husband for Security for Costs

1. On 12 December 2018 the husband filed an Application in a Case, seeking security for costs in the sum of $30,000.  Costs were those anticipated in respect of the wife’s application filed 18 July 2017 to have the June 2017 orders discharged.  The content of the single expert report was, undoubtedly, the basis for concern by the husband that the wife could fail in her attempt to seek fresh orders, and costs would be an issue. 

2. On 15 March 2019 the application for security for costs was heard and determined for reasons given at the time.  For the projected trial, the wife advised the Court that she did not require the single expert, Ms B.  In fact, the wife made the following concession “that the signature was hers, but does not recall signing the document”.

3. Orders were made in accordance with the application, and a sum of $30,000 was appointed as security for costs.

Non-compliance by Wife

1. The wife did not comply with the order to provide security for costs by mid-April 2019 in accordance with the orders, or at all.

2. On 29 April 2019 the wife again became legally represented.

3. On 10 May 2019 the matter was back before the Court for directions.

4. Order 1 of the March 2019 orders, relating to provision of $30,000 security, was varied to extend the period of time for compliance by the wife until 21 June 2019.  The wife from the bar table asked for time to negotiate with her superannuation fund to have $30,000 released.  The husband consented to the adjournment, foreshadowing that, if security was not provided, summary dismissal would be pressed.  The matter was adjourned to 13 August 2019. 

5. On 9 July 2019 the husband filed an Application in a Case, expressly seeking summary dismissal and costs, although his 2017 Response had sought those orders. 

6. On 16 July 2019 the wife again became unrepresented.

The hearing

1. The documents relied on in respect of the application were as follows: 

   The Applicant husband

   (a)Application in a Case of the husband filed 11/07/2019;

   (b)Affidavit of the husband filed 9/07/2019;

   The Respondent wife

   (c)Response to an Application in a Case filed 8/08/2019;

   (d)Affidavit of the wife filed 8/08/2019.

2. The matter proceeded by way of oral submissions.

3. The affidavit of the wife focussed on her financial situation.  The wife did not provide specific information on how the funds of $86,000 paid to her by the husband in July 2017 had been disbursed, if that is the case.  The wife annexed bank statements for the period 8 July 2019 to 7 August 2019 without any particular analysis.[4]  Annexed to the affidavit was an email of 12 March 2019, purporting to give an explanation for how the wife had forgotten signing the consent orders. The email was directed to the solicitor for the husband as follows: 

   To Katie Smith [the solicitor for the husband] in regards to your email – I just want to clear this up.  I will not be asking for any further assistance from Ms B [the single expert].  The issue I have isn’t the fact that it’s my signature.  It’s the fact – how your client obtained my signature.  As soon as [the husband] told me he had made me sign the paperwork when I was so sick, in bed, the night he came to look after the boys, I rang Mr Wotton [the wife’s former solicitor], and made a sworn affidavit, which was sent off to the courts way before we appointed Ms B.  Also I have send (sic) my GP, and I have a letter.  The medication I was on caused me not to have full mental alertness.  This is what I will be explaining on Friday.  Kind regards.  [Ms Erikson].[5]

   [4] Affidavit of Ms Erikson filed 8/08/2019, Annexure A

   [5] Affidavit of Ms Erikson filed 8/08/2019, Annexure A

4. There was also an email of 1 April 2019, where the husband had offered to place $40,000 into the wife’s super account, perhaps in accordance with the June 2017 orders or just to assist.[6] It is unclear. The wife responded to that email as follows:

   Hi, Ms Smith [the solicitor].  This is the proposition that your client has sent to me, that he would place $40,000 into my super account.  I am unsure as to why he is transferring the money to me, when it’s you that is owed $30,000.  Please advise me on your direction on how this matter should go forward.  Regard.  [Ms Erikson]. 

   [6] Affidavit of Ms Erikson filed 8/08/2019, Annexure B

5. There was an annexure C, an email from Centrelink, confirming that the mother had three children in her care a hundred per cent of the time, which, I note, is inconsistent with the June 2017 orders for parental responsibility, time and communication.[7]

   [7] Family Court of Australia Order dated 1/06/2017

6. Finally, there was a handwritten letter, annexure D, addressed to presiding judicial officer, Cleary J, setting out the fact that the wife did not have $30,000 to pay.[8]

   [8] Affidavit of Ms Erikson filed 8/08/2019, Annexure B

7. By evidence of the wife from the bar table with the pragmatic consent of the solicitor for the father to my taking it into account, the wife said she was only able to withdraw $10,000 from her super fund, whilst apparently acknowledging super funds had been transferred to her by the husband.  There was no express acknowledgement, and none could be inferred, that the wife accepted responsibility for having denied that the signatures were hers or having remained in the house after the payment by the husband, contrary to the orders which directed that she should leave.

The law

1. The Court has jurisdiction under s 45A of the Family Law Act 1975 (Cth):

   Summary Decrees

   No reasonable prospect of successfully defending proceedings

   (1) The court may make a decree for one party against another in relation to the whole or any part of proceedings if:

   (a)The first party is prosecuting the proceedings or that part of the proceedings; and

   (b)The court is satisfied that the other party has no reasonable prospect of successfully defending the proceedings or that part of the proceedings.

   No reasonable prospect of successfully prosecuting proceedings

   (2)The court may make a decree for one party against another in relation to the whole or any part of a proceedings if:

   (a)The first party is defending the proceedings or that part of the proceedings; and

   (b)The court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceedings or that part of the proceedings.

   When there is no reasonable prospect of success

   (3)For the purposes of this section, a defence or proceedings or part of proceedings need not be:

   (a)Hopeless; or

(b)Bound to fail;

To have no reasonable prospect of success.

Proceedings that are frivolous, vexatious or an abuse of process

(4)The court may dismiss all or part of proceedings at any stage if it is satisfied that the proceedings or part is frivolous, vexatious or an abuse of process.

(5)To avoid doubt, proceedings or a part of proceedings are not frivolous, vexatious or an abuse or process merely because an application relating to the proceedings or the part is made and later withdrawn.

Costs

(6)If the court makes a decree, or dismisses all or part of proceedings, under this section, the court may make such order as to costs as the court considers just.

Action by court on its own initiative or on application

(7)The court may take action under this section on its own initiative or on application by a party to the proceedings.

This section does not limit other powers

(8)This section does not limit any powers that the court has apart from this section.

Note:   Part XIB also gives courts powers relating to vexatious proceedings.

1. The Court has power to dismiss proceedings in which a party, in this case, the wife, has no reasonable prospect of success.  This test does not require the proceedings to be hopeless or bound to fail.  The law is, generally, protective of the rights of citizens to “have their day in court”.

2. In this case the wife consented to orders in March 2017, by signing all relevant documents to support orders being made with her consent and that of the husband.  Five weeks after the orders were made, the wife filed a fresh application, canvassing all issues which had been resolved by consent.  The husband made a payment pursuant to the orders, although two to three weeks late.  The wife accepted it but did not move out of the property.

3. In October 2017 the wife asserted criminal conduct, namely, forgery of her signature.  A single expert report effectively closed down that allegation.  The wife was at all times the person best placed to know whether the relevant signatures were hers.  Subsequently the wife changed her position to stating that the signatures were hers but that she had forgotten signing the documents.  She had also previously provided medical evidence to the effect that she had told a doctor that she was affected by prescription drugs when she signed the documents.

4. The evidence of the wife about signatures is, simply, not credible. Her statement in her affidavit sworn 11 July 2017, which became exhibit 3 in the hearing on 15 March 2019 for security of costs, includes this paragraph:[9]

   [The husband] did come round, and he helped me out on two days.  He was still going to work.  I got my girlfriend [Ms C] to drive the boys to school, but [the husband] did come round two afternoons and nights and made the meals for the boys on those evenings and played with them so I could stay in bed, because I was too sick to properly look after them.  When [the husband] said to me in this telephone conversation that he got me to sign it one night when he came round, I was very worried, because I knew that I was very sick, and I have been taking medication, which I don’t usually take, and I even wondered if I was so sick that I might have signed something without even knowing it, and I even doubted my own sanity, because I was sure that I have never signed anything at all for the whole of this year for the court.  I have since looked at the copy of the application for consent orders, and I say that the signature of the respondent on that application [the wife] is not my signature, and I say that I have never consented to those orders.

   [9] Affidavit of the wife filed 11/07/2017, par 80

1. That statement in the wife’s affidavit was clearly untruthful, given her subsequent concessions.

2. Part 10.3 and Rule 10.14 of the Family Law Rules 2004 relates to applications for summary orders:[10]

   [10] Family Law Rules 2004 (Cth) r 10.14

   What the court may order under this Part

   On an application under this Part, the court may:

   (a)Dismiss any part of the case;

   (b)Decide an issue;

   (c)Make a final order on any issue;

   (d)Order a hearing about an issue or fact; or

   (e)With the consent of the parties, order arbitration about the case or part of the case.

   Note: This list does not limit the powers of the court. The court may make orders on an application, or on its own initiative (see rule 1.10).

3. The husband relies on Rule 10.12 (d) that there is no reasonable likelihood of success of the wife’s application.[11]

   [11] Family Law Rules 2004 (Cth) r 10.12

Conclusion

1. On an application such as this, the Court may take many different steps.  It is a discretionary power.  Rule 10.14 sets out the possibilities, but the Court may make other orders as considered appropriate.  Summary dismissal is, certainly, an order rarely and sparingly made.  However, I do not consider that this matter falls into the category of a weak case.  It is a case where the wife cannot have any prospect of success.

2. What the wife relied on to support her application to discharge very recent orders was her allegation of criminal misconduct by someone, possibly, the husband in forging her signature.  Expert evidence was not ambivalent.  All the relevant signatures on the consent orders and supporting annexures were those of the wife, and she no longer challenges that finding.

3. The solicitor for the husband submits, and I agree, that in those circumstances the fresh application could have no prospects of success.

4. In respect of parenting nothing in particular had changed in the five weeks since the June 2017 orders had been made.  In respect of property the husband was slightly late with a payment pursuant to the June 2017 orders, but the wife’s application was not an enforcement application.  It was a new application.  The wife herself has not complied with her own obligations under the June 2017 orders.

5. Two years have passed, and considerable costs have been incurred by the husband due to the unfounded allegation of forgery by the wife.  In those circumstances I dismiss the Initiating Application of the wife filed 18 July 2017 in the FCC.  All other outstanding applications and responses are dismissed with the exception of the husband’s application for costs.

6. Orders are made accordingly.

I certify that the preceding fifty-five (55) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cleary delivered on 30 August 2019.

Associate: 

Date:  30 August 2019