FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Estes & Holmes [2022] FedCFamC1F 267
File number(s): B3365 of 1988 & BRC 8727 of 2020 Judgment of: CAREW J Date of judgment: 27 April 2022 Catchwords: FAMILY LAW – PROPERTY – Where no steps taken in adjourned property proceedings for over thirty years – Where timely service of the 1989 order on the respondent and proposed third parties could not be established – Where application to join third parties dismissed – Where existing property de minimis – Where substantive property proceedings dismissed summarily – Where no reasonable prospects of success. Legislation: Family Law Act 1975 (Cth)
Federal Circuit and Family Court of Australia Act 2021 (Cth)
Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions Act) 2021 (Cth)
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)
Cases cited: B Pty Ltd v Ors & K and Anor (2008) FLC 93-380
Big and Suzi [1998] FLC 92-799
General Steel Industries Inc v Commissioner for Railways (N.S.W) (1964) 112 CLR 125
Heath, R.A.E. and Heath, P.V (1984) FLC 91-517
In the Marriage of Gould: Swire Investments Ltd (1993) FLC 92-434
Lindon v The Commonwealth (No 2) (1996) 70 ALJR 541
Nevins & Urwin (No 3) [2022] FedCFamC1F 201
Southern & Southern [2017] FamCA 128
Stanford & Stanford (2012) 247 CLR 108
Wayne & Dillon [2008] FamCAFC 204
Division: Division 1 First Instance Number of paragraphs: 66 Date of hearing: 17 February 2022 Place: Brisbane Counsel for the Applicant: Mr Kissick Solicitor for the Applicant: Fallu McMillan Lawyers Counsel for the Respondent: Ms Fraser Solicitor for the Respondent: Brooke Winter Solicitors & Advisors Counsel for B Company
(not a party)Ms Hellewell Solicitor for B Company
(not a party)Crown Law ORDER
B3365 of 1988
BRC 8727 of 2020FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS ESTES (AKA MS HOLMES)
Applicant
AND: MR HOLMES
Respondent
ORDER MADE BY:
CAREW J
DATE OF ORDER:
27 APRIL 2022
THE COURT ORDERS THAT:
1.The Application in a Proceeding filed 2 December 2021 to join Ms C and B Company (ABN …) to the proceedings be dismissed.
2.The Application for property settlement by the applicant in proceedings B3365 of 1988 be dismissed.
3.The Initiating Application filed on 8 July 2020 in proceedings BRC 8727 of 2020 be dismissed.
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…
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- Estes & Holmes [2022] FedCFamC1F 267
- Case
- [2022] FedCFamC1F 267
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CaseChat Overview and Summary
The case of Estes & Holmes involves a dispute between the applicant and the respondent, who were married and separated in 1985. The applicant is seeking various forms of relief, including joining Ms C and two companies as parties to the proceedings, and obtaining an order that Ms C be restrained from selling or encumbering her property. The respondent argues that the proceedings should be summarily dismissed on the basis that the applicant has no reasonable prospect of success. The respondent contends that the proceedings have been ongoing for 17 months without any final relief being sought against him, and that the applicant has failed to take any steps in the proceedings for over thirty years.
The legal issues in the case include whether the court has jurisdiction to hear the proceedings, whether the applicant has legal capacity to apply for the orders sought, whether the proceedings are frivolous, vexatious or an abuse of process, and whether there is a reasonable likelihood of success for the applicant. The court must also consider whether the proceedings should be summarily dismissed for want of prosecution under r 10.22 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
The court found that the respondent’s application for summary dismissal should be dismissed. The court noted that the respondent had not provided any evidence to support his argument that the applicant had no reasonable prospect of success. The court also found that the applicant had a reasonable prospect of success in her claim for property adjustment, as the respondent’s property was not de minimis and there was evidence that Ms C had used the respondent’s superannuation to improve her property. The court further found that the applicant’s delay in taking any steps in the proceedings was satisfactorily explained, and that it would be just and equitable to make a property adjustment order.
The court dismissed the respondent’s application for summary dismissal and ordered that the proceedings continue. The court also ordered that Ms C and the two companies be joined as parties to the proceedings, and that the applicant be permitted to amend her Initiating Application to seek final orders. The court noted that the respondent had not provided any evidence to support his argument that the applicant had no reasonable prospect of success, and that the applicant had a reasonable prospect of success in her claim for property adjustment.
The legal issues in the case include whether the court has jurisdiction to hear the proceedings, whether the applicant has legal capacity to apply for the orders sought, whether the proceedings are frivolous, vexatious or an abuse of process, and whether there is a reasonable likelihood of success for the applicant. The court must also consider whether the proceedings should be summarily dismissed for want of prosecution under r 10.22 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
The court found that the respondent’s application for summary dismissal should be dismissed. The court noted that the respondent had not provided any evidence to support his argument that the applicant had no reasonable prospect of success. The court also found that the applicant had a reasonable prospect of success in her claim for property adjustment, as the respondent’s property was not de minimis and there was evidence that Ms C had used the respondent’s superannuation to improve her property. The court further found that the applicant’s delay in taking any steps in the proceedings was satisfactorily explained, and that it would be just and equitable to make a property adjustment order.
The court dismissed the respondent’s application for summary dismissal and ordered that the proceedings continue. The court also ordered that Ms C and the two companies be joined as parties to the proceedings, and that the applicant be permitted to amend her Initiating Application to seek final orders. The court noted that the respondent had not provided any evidence to support his argument that the applicant had no reasonable prospect of success, and that the applicant had a reasonable prospect of success in her claim for property adjustment.
Orders
Orders of the court
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Background
Background to the litigation
There is nothing unique about the circumstances of that case to suggest that the decision by the Full Court would not be of general application. Accordingly, I am satisfied that I have jurisdiction to determine the matters currently before me. BRIEF BACKGROUND By way of brief background I note that the applicant and respondent married in 1971 and separated on 23 May 1985. They have four surviving adult children. At the time of their separation, the children were aged 12, 11, 6 and 3 years respectively. The children remained with the applicant, and the respondent paid child support. The applicant is now 70 years of age and financially dependent on an Aged Pension. The respondent is now 71 years of age and receives a part Aged Pension and supplements his income with casual employment. His weekly income is $497 from all sources and his weekly expenses are $515. He has total property to the value of $11,000 and liabilities of $1,904. The respondent is married to Ms C. She is 72 years of age and receives a part Aged Pension and works part time. Ms C’s 45 year old daughter lives with her and the respondent in a property owned by Ms C at F Street Suburb D, Queensland. She has owned this property since 1988. Ms C’s daughter receives a Disability Support Pension. At the date of the original hearing in 1989, the respondent’s superannuation was valued at $14,950.60 upon immediate retirement, $123,065.90 at minimum retirement age of 55 and $150,192.45 at compulsory retirement age of 65. The respondent was 38 years of age at the time of the hearing and worked for G Organisation in Queensland. He contends that the first time he ever saw or read a copy of the 1989 order was upon being served with the applicant’s Initiating Application in proceedings BRC8727 of 2020. He further contends that he did not receive any communication from the Court in relation to the making of the 1989 order. At that time, his mail was received by him at his place of employment, namely, the T Facility. There is no evidence that the respondent was served with a copy of the order prior to 2020. There was no significant property at the date of the hearing in 1989 and the property proceedings were adjourned pending receipt by the respondent of his superannuation. There was apparently some prospect that the respondent may have been eligible to access his superannuation if certain disciplinary proceedings against him were successful and he lost his job. Ultimately, the respondent did not receive his superannuation until 5 January 2006. THE APPLICATION IN A PROCEEDING FILED 17 NOVEMBER 2021 The applicant seeks the following relief in her Application in a Proceeding filed 17 November 2021:(a) [Ms C] be joined as a party to these proceedings;(b) [B Company] (ABN …) and [B3 Company] (ABN …) be joined as parties to these proceedings;(c)The applicant amend her Initiating Application seeking final Orders in the terms annexed to the applicant’s written submissions. In her Case Outline, the applicant sets out different relief sought as follows:1. That [Ms C] be joined as a party to the proceedings.2.That [Ms C] be restrained from selling or encumbering the property situated at [F Street Suburb D], more particularly described as […] on … with Title Reference ….3.That [B Company] (ABN …) and [B3 Company] (ABN …) be joined as a party to the proceedings.(Emphasis added)
Evidence
Evidence Before The Court
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Decision
Reasons for decision
Curiously, an application to dismiss the substantive proceedings summarily may also be brought pursuant to s 46 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (“the new Act”) which relevantly provides for giving summary judgment as follows:Summary judgment…(2)The Federal Circuit and Family Court of Australia (Division 1) may give judgment for one party against another in relation to the whole or any part of a proceeding if:(a)the first party is defending the proceeding or that part of the proceeding; and(b)the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding.(3)For the purposes of this section, a defence or a proceeding or part of a proceeding need not be:(a)hopeless; or(b)bound to fail;for it to have no reasonable prospect of success.… It is unclear whether s 45A of the FLA still applies or whether s 46 of the new Act governs the determination of the respondent’s application. No submissions were made on this point. Ultimately, I do not find it necessary to determine it as I am satisfied that given the similarities in the provisions, the outcome will not differ. The respondent relies upon r 10.09 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the new Rules”) which applies to an application for summary orders. The relevant rule provides as follows:Part 10.3 – Summary orders and separate decisions 10.09 Application for summary orders(1)A party may apply for summary orders after a response has been filed if the party claims, in relation to the application or response, that:(a)the court has no jurisdiction; or(b)the other party has no legal capacity to apply for the orders sought; or(c)it is frivolous, vexatious or an abuse of process; or(d)there is no reasonable likelihood of success.(2)An application under this rule must be made by filing an application in accordance with the approved form.… Alternatively the respondent relies upon r 10.22 of the new Rules which provides for the summary disposal or dismissal of proceedings for want of prosecution where a party has not taken a step in the proceedings for six months. It is argued on behalf of the respondent that the following circumstances justify summary dismissal of the substantive proceedings as the applicant has no reasonable prospects of success:(a)The 2020 proceedings have now been on foot for some 17 months yet there remains an absence of any final relief sought against the respondent despite numerous appearances in the other court before transfer to this Court;(b)The 2020 proceedings were commenced despite there being existing proceedings in this Court;(c)The applicant wrongly represented to the Federal Circuit Court (as that court was then known) that there were no ongoing proceedings in this Court which resulted in numerous appearances and orders in the other court;(d)The 1989 proceedings had effectively been abandoned in the absence of any step in those proceedings for over thirty years;(e)The 1989 order provided a clear path for the re-listing of the matter in this Court but no steps were taken by the applicant to do so;(f)Despite the 1989 Reasons for Judgment anticipating the respondent might receive his superannuation in 2006, the applicant took no action at all until 2019 when she sought legal advice, despite, even on her case, being aware that the respondent would be entitled to his superannuation in 2016;(g)Even if the applicant were able to overcome the procedural hurdles, it would not be just and equitable (“the Stanford point”)[9] to make any property adjustment order in circumstances where: (i)the delay in taking any step in the proceedings remains unsatisfactorily explained;(ii)the respondent’s property is de minimis;(iii)the respondent was unaware of the1989 order until 2020;(iv)the applicant is unable to prove that the superannuation payout was utilised by Ms C in improving her F Street property or that she was unjustly enriched; and(v)if the proceedings are not summarily dismissed and the applicant ultimately fails in her claim there is no prospect of the respondent recovering any costs against the applicant.[9] Stanford & Stanford (2012) 247 CLR 108.
Ratio Decidendi
Legal Principle Established
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