GARVEY & JESS
[2017] FamCA 783
•3 August 2017
FAMILY COURT OF AUSTRALIA
GARVEY & JESS [2017] FamCA 783
FAMILY LAW – CHILDREN – Interim – Whether it is in the best interests of the children for an equal shared parental responsibility order to be made – Whether it is in the best interests of the children to maintain the current time between the father and children pending final hearing or increase the father’s time with the children – Whether school holiday time should end on the Sunday before school recommences or upon the recommencement of the school term – Orders made for equal shared parental responsibility and increased time between the father and the children.
FAMILY LAW – FINANCIAL AGREEMENT – Summary dismissal – After an order already made that a financial agreement was not void for uncertainty – Further application brought seeking the same financial agreement be set aside or declared not valid, enforceable or effective – Application of Anshun type estoppel – whether abuse of process – Whether there are special or exceptional circumstances – Further application dismissed.
Family Law Act 1975 (Cth) ss. 4, 4AB, 60B, 60CA, 60CC, 60CG, 61C, 61DA, 65DAC, 79, 90K, 90KA
Family Law Rules 2004 (Cth) rr. 10.12 (c), 10.14
Banks & Banks (2015) FLC 93-637
Baghti & Baghti [2015] FamCAFC 71
Brimaud v Honeysett Instant Print Pty Ltd (1988) 217 ALR 44 at 46 Bryant v Commonwealth Bank of Australia (1995) 57 FCR 287 Goode & Goode (2006) FLC 93-286
Henderson v Henderson (1843) 67 ER 313 at 319
Pelerman v Pelerman (2000) FLC 93-037
Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589
Rahme v Commonwealth Bank of Australia (unreported New South Wales Court of Appeal, 20 December 1991)
SCVG & KLD (2014) FLC 93-582
Tomlinson v Ramsey Food Processing Pty Ltd (2015) 26 CLR 507
University of Wollongong v Metwally (No. 2) (1985) 60 ALR 68
‘Anshun Today’: KR Handley (1997) 71 ALJ 934 at 940
| APPLICANT: | Mr Garvey | ||
RESPONDENT: FILENUMBER: | Ms Jess BRC 2175 | of | 2016 |
DATE DELIVERED: 3 August 2017
PLACE DELIVERED: Brisbane
PLACE HEARD: Brisbane
JUDGMENT OF: Carew J
HEARING DATE: 17 July 2017
REPRESENTATION
COUNSEL FOR THE APPLICANT: Mr M Kearney SC
SOLICITOR FOR THE APPLICANT: Barry.Nilsson Lawyers COUNSEL FOR THE RESPONDENT: Dr J A Watson SOLICITOR FOR THE RESPONDENT: Hirst & Co
ORDER
Parenting
The applicant and respondent shall have equal shared parental responsibility for all major long term issues (as that term is defined in section 4 of the Family Law Act 1975 (Cth)) for the children C born … 2007 and D born … 2009.
The children shall live with the respondent and spend time with the applicant during school term time as follows:
(a) In week 1 and each alternate week thereafter, from the conclusion of school on Wednesday until the commencement of school Friday; and
(b) In week 2 and each alternate week thereafter, from the conclusion of school on Wednesday until the commencement of school on Monday (or in the event that Monday is a public holiday or a pupil free day, until the commencement of school on Tuesday).
Save as otherwise provided for in this order, in the April, June/July, and September/October school holidays the children shall spend time with each parent as agreed and failing agreement for one half of the school holidays (being that period prescribed by the school which the children attend) being the first half in the year 2017 with the applicant and every odd numbered year thereafter, and for the second half in the year 2018 with the applicant and every even numbered year thereafter and the other half in each instance with the respondent.
For the purpose of this Order the school holiday period shall commence upon the conclusion of the school for the term and conclude upon the resumption of school for the next term.
IT IS FURTHER ORDERED BY CONSENT
Save as otherwise provided for in this order, in the Christmas school holidays the children shall spend time with each parent as agreed and failing agreement on a week about basis with the initial changeover to occur on the last day of the school term and thereafter changeover occur every seven days at 9 am until the recommencement of the next school term.
Time in accordance with paragraph 2 herein shall recommence on the first Wednesday afternoon following the conclusion of the school holiday period and to give effect to this order, the following shall apply:
(a) In the event the last full weekend prior to the commencement of the school holiday period was “week one” then the first Wednesday afternoon pick up following the recommencement of the school term shall be “week two”; and
(b) In the event the last full weekend prior to the commencement of the school holiday period was “week two” then the first Wednesday afternoon pick up following the recommencement of the school term shall be “week one”.
Notwithstanding any other provision in this Order, the children shall spend time with each of the respondent and the applicant on the following special occasions as agreed between the respondent and the applicant, and failing agreement, as follows:
(a) on the Christmas festive days:
(i)in odd-numbered years, from 4.00pm on Christmas Eve until 4.00pm on Christmas Day with the Applicant, and from 4.00pm Christmas Day until 4.00pm Boxing Day with the Respondent; and,
(ii)in even-numbered years, from 4.00pm on Christmas Eve until 4.00pm on Christmas Day with the Respondent, and from 4.00pm Christmas Day until 4.00pm Boxing Day with the Applicant;
(b)on the Easter festive days:
(i)in odd-numbered years, from 9.00am Good Friday until 5.00pm Easter Monday with the Respondent; and,
(ii)in even-numbered years, from 9.00am Good Friday until 5.00pm Easter Monday with the Applicant;
(c) on each child’s birthday, and in the event that such child would not otherwise spend time with that parent on that day but for this Order, the children shall spend time with that parent as follows:
(i)if the birthday falls on a school day, from 3.00 pm until 6.00 pm; and
(ii)if the birthday falls on a non-school day, from 12.00 pm until 5.00 pm;
(d) in the event that Mother’s Day occurs on a weekend when the children would otherwise be in the applicant’s care in accordance with this order, the children shall not spend time with the applicant on that weekend but shall spend time with the applicant on the immediately following weekend (such time to be the same as that set out in paragraph 2(b) herein); and
(e) in the event that Father’s Day occurs on a weekend when the children would otherwise be in the respondent’s care in accordance with this order, the children shall spend time with the applicant on that weekend (such time to be the same as that set out in paragraph 2(b) herein) but shall not spend time with the applicant on the immediately following weekend.
In accordance with section 65Y and 65Z of the Family Law Act 1975, the parties be at liberty to travel overseas with the children provided that the proposed period of travel falls within a period in which the children would be living or spending time with that parent pursuant to the terms of this Order, unless otherwise agreed upon by the parties in writing, with the costs of travel to be borne by the travelling parent, and:
(a) any proposed destination or stopover (which does not apply to ‘in transit’ destinations only) is a country which has acceded to the Hague Convention on the Civil Aspects of International Child Abduction and is a convention country under regulation 10 of the Family Law (Child Abduction Convention) Regulations 1986;
(b) that parent travels with the child or children for the entire period during which the child or children is travelling;
(c) not less than four (4) weeks prior to the intended departure date, the travelling parent provide the other (non-travelling) parent with:
(i)a copy of a return ticket;
(ii)a detailed written itinerary of the proposed trip, including the dates at all locations and destinations of travel and details of accommodation for the entire period of travel (including, if applicable, the name of accommodation, address, telephone and email contact details); and,
(iii)an available telephone number on which communications with the children can occur during the trip.
Forthwith each parent shall do all acts and things necessary to assist the other to obtain a passport for the child/children where necessary with the costs of obtaining the passport being shared equally by the parents.
In the event of either parent failing or refusing to sign any document necessary to allow for the issue of the child/children’s passport within seven days of submission of the document by the other parent then and in such an event the Registrar of the Family Court of Australia at Brisbane is hereby appointed to execute any such document in the name of the defaulting party and do all acts and things necessary to secure the issue of the children’s passport.
Within seven days of the children’s return to Australia following travel, the
children’s passports shall be held by the respondent’s solicitor on behalf of both parents with the passports only to be released to either parent with the written consent of both parents or order of this Court.
The children shall be at liberty to communicate with either parent at any reasonable time by way of telephone.
(13) The parents shall endeavor to facilitate telephone communication between the children and the other parent and shall encourage the children to return missed calls where possible and provide the children with privacy during their telephone calls with the parent.
During school terms, the parent due to spend time with the children, shall collect the children from school at the commencement of time and deliver the children to school at the conclusion of time. However, if changeover occurs on a day that is not a school day, the parent due to spend time with the children, shall collect the children from the other parent’s home at the commencement of time and deliver the children to the other parent’s home at the conclusion of time, unless otherwise agreed in writing.
Each of the Respondent and the Applicant notify the other in writing within forty-eight (48) hours of any change to their respective residential addresses, contact telephone numbers or contact e-mail addresses.
Each of the respondent and the applicant shall notify the other as soon as possible and in any event within twenty-four (24) hours of any injury or illness being suffered by the children which requires medical treatment.
Each of the respondent and the applicant shall provide the other with the names and contact details of any health practitioner upon which the children attend during periods the children are spending time with them respectively within twenty-four (24) hours of the child’s first attendance upon that practitioner.
IT IS FURTHER ORDERED
Paragraph 34 of the Final Order sought by the respondent in her Further Amended Initiating Application filed on 1 November 2016 is dismissed.
In the event that the parties are unable to agree in writing within 21 days of today what costs Order, if any, might be made regarding the costs of and incidental to the said Application:
(a) Each party file within a further 14 days written submissions in respect of that issue; and
(b) Unless either party otherwise therein contends to the contrary, that issue be determined in chambers without the necessity of further appearance by
In the event that the parties reach agreement in writing on the issue of costs, they be at liberty to file jointly, minutes of consent via e-mail to the Associate to Justice Carew.
That the matter be listed for mention on a date to be advised before the Senior Registrar.
NOTATION:
Pursuant to s 65DA(2) and s 62B, the particulars of the obligations this Order create and the particulars of the consequences that may follow if a person contravenes this Order and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in this Order.
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
Garvey & Jess 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 BRISBANE FILE NUMBER: BRC 2175 of 2016
Mr Garvey
Applicant And
Ms Jess
Respondent
REASONS FOR JUDGMENT
This hearing relates to the parties competing applications for interim parenting orders as well as the applicant’s application to summarily dismiss the respondent’s further application in respect of the Financial Agreement signed by the parties on 3 August 2006.[1]1
PARENTING - BACKGROUND
[1] The applicant is the respondent in the substantive proceedings
The applicant and respondent married in 2006 and separated in 2015 with the applicant moving out of the family home on 19 June 2015.
The parties have two children, C born in 2007 and D born in 2009 (“the children”).
In June 2015 the parties entered into a Parenting Plan with the assistance of Ms E, social worker, which provided for the children to live with the respondent and spend time with the applicant for five nights per fortnight (Thursday to Saturday morning in one week and Thursday to Sunday afternoon in the other week) and half of the school holidays, and for the parties to have equal shared parental responsibility. This remains the current arrangement.
The applicant is seeking an interim order to increase the time the children spend with him to seven nights per fortnight from after school Wednesday until before school Friday in one week and from after school Wednesday until before school Monday in the second week.
The respondent is seeking that the current arrangement continue until a final hearing of the matter save that she proposes she have sole parental responsibility.
Two family reports have been prepared in this matter by Mr F, one filed with the Court on 28 October 2016 and the most recent report was filed on 12 July 2017.
In the first family report Mr F recommended inter alia that the child C attend counselling over a period of six months and then an updated report be prepared. C undertook counselling with psychologist Ms G and had attended five sessions at the time the updated family report was prepared by Mr F.
HOW PARENTING APPLICATIONS ARE DETERMINED
Part VII of the Family Law Act 1975 (Cth) (“the Act”) sets out the objects, principles and matters that must be considered when determining what parenting order is proper, but such consideration will focus in particular on matters raised as significant issues by the parties and the Independent Children’s Lawyer.[2]
[2] see Goode & Goode (2006) FLC 93-286; SCVG & KLD (2014) FLC 93-582; Banks & Banks (2015) FLC 93-
637
The Court is not required to make findings of fact on every factual dispute raised by the parties[3] and as this is an interim hearing the Court is unable to make findings of fact where the facts are seriously in contention, other than if the evidence on its face is improbable.[4]4
[3] Baghti & Baghti [2015] FamCAFC 71
[4] Goode & Goode (supra)
The objects of the Act are set out in s 60B(1) and are to ensure that the best interests of children are met by:
a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
Section 60B(2) provides that the principles underlying these objects are that (except when it is or would be contrary to a child's best interests):
a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
d)parents should agree about the future parenting of their children;
e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Section 60CA provides that in deciding whether to make a particular parenting order, the Court is to regard the best interests of the child as the paramount consideration.
Section 60CC outlines the primary and additional considerations that the Court must consider in determining what is in the best interests of the child. In considering the primary considerations the Court must give greater weight to the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Section 60CG imposes a statutory imperative to ensure that a parenting order does not expose a person to an unacceptable risk of family violence and empowers the Court to include in the Order any safeguards that it considers necessary for the safety of those affected by the Order.
Section 4 of the Act defines major long-term issues in relation to a child as follows:
…issues about the care, welfare and development of the child of a long- term nature and includes (but is not limited to) issues of that nature about:
(a)the child's education (both current and future); and
(b)the child's religious and cultural upbringing; and
(c)the child's health; and
(d)the child's name; and
(e)changes to the child's living arrangements that make it significantly more difficult for the child to spend time with a parent.
‘Abuse’ in relation to a child, is defined in s 4 of the Act and means an assault (including a sexual assault) or involving a child in a sexual activity or causing the child to suffer serious psychological harm or serious neglect.
‘Family violence’ is defined in s 4AB of the Act and means violent threatening or other behaviour that coerces or controls a member of the person’s family or causes that person to be fearful. Examples of such behaviour are set out in the section.
Section 61C provides that each parent has parental responsibility for a child subject to any order made by the Court.
Section 61DA provides that when making a parenting order, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility. The presumption does not apply where there are reasonable grounds to believe a parent has engaged in abuse of the child or another child who, at the time, was a member of the parent’s family or where there are reasonable grounds to believe a parent has engaged in family violence, and the presumption may be rebutted if the Court is satisfied that an order for equal shared parental responsibility would not be in the child’s best interests. As this is an interim hearing the Court may decide that it is not appropriate to apply the presumption in the circumstances.
Where the presumption does apply, the Court is required to consider s 65DAA as to whether equal time or substantial and significant time is in the child’s best interests and reasonably practicable.
Section 65DAC makes clear that an order for shared parental responsibility requires decisions about major long-term issues to be made jointly after consultation.
Although I may not specifically discuss in these reasons each subparagraph of each relevant section in the ‘legislative pathway’ I have considered all sections as required when making my determination.[5]
ISSUES REQUIRING DETERMINATION IN THE PARENTING MATTER
[5] Banks & Banks (2015) FLC 93-637
The parties were able to reach agreement on a range of issues which will be in the order by consent.
The remaining issues are as follows:
a)Whether it is appropriate for the presumption (that it is in the best interests of the children for the parents to have equal shared parental responsibility on matters relating to major long term issues) to apply;
b)Whether it is nevertheless in the best interests of the children for an equal shared parental responsibility order to be made;
c)Whether it is in the best interests of the children to maintain the current arrangements pending a final hearing or extend the children’s time with the applicant;
d)Whether the school holiday time should end on the Sunday before school recommences or upon the recommencement of the school term.
Is it appropriate for the presumption to apply?
It is submitted on behalf of the respondent that there are reasonable grounds to believe that the applicant has engaged in family violence.
The nature of the family violence alleged is as follows:
a)Repeated derogatory remarks during the marriage;
b)Behaviour that sought to control and coerce the respondent;
c)Surveillance of the respondent;
d)Threats to harm the mother;
e)Withholding financial support.
The applicant denies that he has engaged in family violence.
As this is an interim hearing and the evidence has not been tested it is not possible for me to determine whether or not it is reasonable to believe the applicant has engaged in family violence. The allegations against the applicant, if true, are capable of falling within the definition of family violence and accordingly, as this is an interim hearing, I do not consider it appropriate for the presumption to apply.
Is it nevertheless in the children’s best interests for an order to be made for equal shared parental responsibility?
There are a number of matters that I consider to be relevant to a determination of this issue including:
a)The parents agreed to equal shared parental responsibility in their parenting plan entered into with the assistance of Ms E in June 2015;
b)The parenting plan specified what was required of the parties in exercising their parental responsibility;
c)The respondent entered into the parenting plan despite the allegations of family violence;
d)The parents have reached agreement on a number of major long term issues e.g. schooling;
e)The respondent does not raise any specific difficulty she has experienced in making a decision with the applicant about a major long term issue;
f)On either proposal of the parties the children will be living in a shared care arrangement;
g)Mr Watson, for the respondent, did not submit that there was any particular decision about a major long term issue that would require the parties making a joint decision pending a final hearing.
It seems that despite complaints about their ability to communicate the parties have nevertheless made decisions jointly e.g. overseas travel and holidays.
Mr F has had the advantage of assessing and observing the parties and the children on two occasions and notes there is probably little prospect of the parties’ communication improving in the future. However, in his view there is no overt conflict and they have nevertheless managed to resolve issues when they have arisen (although I note the mother takes issue with these opinions).
As a means by which the parties may communicate in future about day to day decisions and major long term decisions he suggests the parties use a particular website called ....
Both parties contend for a continuation of a shared care arrangement and both parties will therefore be significantly involved in their children’s lives, so I consider it important for the children that both parents are involved in decisions concerning major long term issues.
Accordingly, I propose to make an interim order for equal shared parental responsibility for major long term issues as I consider it to be in the best interests of the children to do so.
What time should the children spend with each parent pending a final hearing
Mr Watson, counsel for the respondent, submitted that the current arrangements should continue for the following reasons:
a)Because they are working;
b)The children do not want to be away from either parent for as long as seven days during school term;
c)There are problems with communication;
d)The respondent attends Girl Guides with the children on Monday and Tuesday evenings as a leader and she may have to cease their involvement with Girl Guides if the applicant’s time is increased because the time spent at Guides is not optimal time.
It is difficult to see why any of the reasons proffered should limit the children’s time with the applicant.
The fact that the current arrangements are working augurs well in my view for a successful outcome if time is increased by two days a fortnight. The children will not be away from either parent for seven days under either proposal. I was not taken to any evidence or indeed any submission as to why problems with communication would be any worse if the children’s time is increased from five days to seven days a fortnight. Whether the respondent elects to prevent the children attending Girl Guides when they are with her is a matter entirely for her. I am not persuaded that that is a reason to limit their time with the applicant.
Importantly, both girls have expressed very clear views to spend more time with the applicant in the way proposed by him. C has had the assistance of a counsellor over the past six months and Mr F considers the views of the children to be genuine and supports them.
Accordingly, I propose to increase the children’s time with the applicant from five nights to seven nights per fortnight so that they spend Wednesday to Friday with the applicant in week one and Wednesday to Monday in week two. This will also enable each parent to have an uninterrupted weekend with the children each fortnight.
When should school holiday time end
The current arrangement has seen the children return directly to school at the end of holidays. I was not taken to any evidence that the children have experienced any difficulties with that arrangement.
If the children’s holidays other than Christmas would result in them spending a bit longer than seven nights with each parent I am not persuaded that such an arrangement would be detrimental to the children.
Accordingly, I propose to make the order sought by the applicant in relation to these issues.
SUMMARY DISMISSAL
The summary dismissal application is based solely on the argument that it is too late for the respondent to raise fresh grounds upon which to attack the financial agreement. Mr Kearney SC, for the applicant, submits that the respondent had the opportunity to do so at the hearing on 27 May 2016 and it would be an abuse of process to permit her to reignite her attack on the financial agreement (submitted to be an application of the Anshun principle). Further, it is argued that nothing in the respondent’s material explains why the proposed further grounds under s 90K and 90KA did not form part of her case
on 27 May 2016 and that nothing in the grounds or evidence now relied upon by the respondent was unavailable to her at the time of the earlier hearing.
I note also that Rules 10.12 (c) and 10.14 of the Family Law Rules 2004 (Cth) empowers the Court to dismiss any part of a case if it is an abuse of process.
Mr Kearney SC did not cavil with the principles that generally apply to a summary dismissal application.[6]6 Rather, he submitted that the application of those principles did not arise in the circumstances of this case.
[6] Pelerman v Pelerman (2000) FLC 93-037
Mr Watson, counsel for the respondent, submits that the Anshun principle has no application as there has been no final determination of the case. In the alternative he submitted that there are special circumstances which would cause the application of that principle to be unjust. The special circumstances being the respondent’s now articulated claim, although this submission was not expanded upon.
SUMMARY DISMISSAL - BACKGROUND
On 3 August 2006 the parties entered into a financial agreement pursuant to s90B of the Act. The parties married in 2006. Each of the parties was legally represented at the time.
When the parties separated in 2015 the applicant clearly indicated to the wife his intention to be bound by the terms of the agreement.
On 24 August 2015 the respondent’s then solicitors asked how the applicant contended the assets would be divided pursuant to the terms of the financial agreement but otherwise reserved her position in relation to it.
On 12 November 2015 the applicant’s solicitors asked the respondent to confirm her acceptance that she was bound by the financial agreement.
On 20 November 2015 the respondent’s solicitors requested disclosure to enable the respondent to verify the pool of assets to be divided pursuant to the financial agreement and also in relation to spouse maintenance as the latter was not dealt with in the financial agreement.
On 3 December 2015 the applicant’s solicitors again sought confirmation of the respondent’s position regarding being bound by the financial agreement.
On 11 December 2015 the respondent’s solicitors again sought disclosure saying they were not in a position to comment on enforceability until full disclosure.
On 22 December 2015 the applicant’s solicitors again sought confirmation of the respondent’s position and put the respondent on notice of an application to enforce the terms of the financial agreement.
On 11 March 2016 the applicant filed an Application in a Case pursuant to Rule
2.01 (application seeking the enforcement of a financial obligation) seeking the following order:
(1)That the hearing date of this application be abridged and the application be listed for hearing at the earliest possible date.
(2)That to the extent, if any, required there be an order that the financial agreement entered into by [Mr Garvey] (the husband) and [Ms Jess] (the wife) and dated 3 August 2006, a copy of which is annexed hereto and marked Annexure “A” (the Financial Agreement), be enforced as if an order of a court with jurisdiction pursuant to the Family Law Act 1975 (Cth).
(3)That for the purpose of, and by way of, enforcement of the Financial Agreement:
(a)[there then followed specific paragraphs as to how the agreement should be enforced]
On 24 March 2016 the applicant’s solicitors informed the respondent inter alia:
… in the event that your client contends that the agreement is one other than one binding upon the parties, this is not a matter that your client has sought to put in issue to date, notwithstanding prior requests seeking to ascertain your client’s position. If your client contends, would you advise by reply both as to the same and provide particulars as to the legal and/or financial basis for any such contention.
An issue arose as to the proper process to seek the order sought by the applicant. The respondent contended that an Application Initiating Proceedings should have been filed. That matter was resolved by Registrar Stoneham on 29 March 2016 when it was ordered that the respondent file any Response to the Application in a Case within 14 days.
The respondent filed a Response to the Application in a Case on 12 April 2016 in which she sought to have the applicant’s Application in a Case dismissed and that he pay her costs. Her Response then continued with a position in the
alternative “if the Court determines that the purported Financial Agreement is enforceable” and set out in detail specific paragraphs as to how the agreement should be enforced.
On 19 April 2016 the respondent filed an Initiating Application predicated upon the financial agreement being enforceable in which she sought inter alia and under the heading ‘other property’ the following:
32. Pursuant to section 79 of the Family Law Act (Cth) 1975 there be an adjustment of any other property of the parties which is not defined as either [Mr Garvey’s] assets, [Ms Jess’s] assets or joint assets pursuant to the Financial Agreement dated 3 August 2006 so as to divide any such property in equal proportions between the Applicant Wife and the Respondent Husband on the basis that with the Applicant Wife is to further particularise the orders sought by her following disclosure by the Respondent Husband.
On 20 May 2016 an Amended Initiating Application was filed by the respondent which relevantly added another clause as follows:
33. Subject to the outcome of the proceedings relating to the Financial Agreement, pursuant to section 79 of the Family Law Act (Cth) 1975 there be an adjustment of property of the parties between the Applicant Wife and the Respondent Husband on the basis that with the Applicant Wife is to further particularise the orders sought by her.
The applicant’s Application in a Case and the respondent’s Response to the Application in a Case relating to the financial agreement was heard on 27 May 2016. The matter proceeded on the basis that the ‘enforcement’ terms sought by each party were not before the Court for determination on that day. The only order made as a result of that hearing was to dismiss the respondent’s Response to an Application in a Case (which sought the applicant’s application to enforce the Financial Agreement be dismissed).
At that hearing the respondent was represented by a different firm of solicitors and different counsel, a Queen’s Counsel. Relevant parts of the transcript of that hearing are as follows:
MR KEARNEY: …As your Honour would have … gleaned from reading the material, today’s events relates to, if I can put it in perhaps its most neutral, the question of the status of the financial agreement entered between the parties. …
…
HER HONOUR: So the actual order that you seek today on behalf of your client is what?
MR KEARNEY: My actual order is the dismissal of the wife’s application. For my part, we only seek an order that the financial agreement be enforced as if an order of the court to the extent necessary. The wife’s application, as best I understand it, is that my application for enforcement of the agreement be dismissed.
…
DR BRASCH: And I join with my friend. The issue for determination is the characterisation of that document.
…
MR KEARNEY: … Our primary position, your Honour, is that there is and indeed can be no issue here that these parties have entered into a financial agreement that is binding upon them for the purpose of the Act. …
… whatever the deficiencies that are asserted about the agreement, there is and was an agreement between the parties that was entered into in the form of a deed to constitute a financial agreement and that the deficiencies ultimately, … are deficiencies that don’t impugn either the fact of the agreement as so constituted, nor the binding nature of the agreement, … but we’re in a curious position where, whatever those deficiencies are, they’re not relied upon here to seek to set aside the agreement.
…
HER HONOUR: The issue seems to be whether it is void for uncertainty.
…… the only issue arising seems to be on the basis that, yes, there was an agreement entered into. It’s not binding because of uncertainty. Curiously, though, that really seems to bring in 90K, doesn’t it? If someone is impugning or seeking to impugn a financial agreement, then a court, really, makes an order under section 90K. And there is no such application before me for 90K, is there?
MR KEARNEY: No. But as I’ve said … I seek to attach some significance to that, … because the …. proposition that … one might reasonably expect to have before you … it is void under section 90K(1) and ought be set aside for uncertainty, or it is unenforceable on that basis. That proposition is not advanced. It’s impracticable for the agreement or part of it to be carried out in subsection (c) and that’s not advanced before your Honour. You’re left with that proposition that … it is said that there is so lacking in essential terms that the agreement ought fail almost ab initio, and you don’t then get to the fact of the financial agreement. But that’s where the challenge starts and ends.
…
DR BRASCH: … we don’t even get to the section 90G considerations. …
…
… but our point is not so much one of the 90K, that would be a fall-back position – and it would be uncertainty, …
…
… what happens here today will determine how, or whether there is a further section 79 claim to proceed. … it’s really whether we have a 79 claim in total, or possibly confined to that little part will determine very much on what the outcome of today.[emphasis added]
In my reasons for judgment delivered on 7 June 2017 I observed inter alia:
2. The wife contends that the deed is void for uncertainty and that, accordingly, the husband’s Application for enforcement should be dismissed.
9. The husband proposes that the terms of the deed be enforced. He proposes a mechanism for that to occur.
10. The wife resists enforcement on the basis that there was never an agreement because the essential terms of the deed were uncertain. In the alternative she proposes that the terms of the deed be enforced and proposes a mechanism for that to occur. The wife has also filed an Initiating Application in which she seeks an order for inter alia spousal maintenance, child support, a s 79 order to the extent the deed does not deal with all property and, dependent upon the outcome of this application, a s79 order in relation to all property.
Issues requiring determination
11. The only issue for determination at this hearing is whether the deed is void for uncertainty.
12. If I find the deed not to be uncertain it seems to be conceded that the statutory requirements of ss 90B and 90G have been complied with and that the deed is a binding financial agreement to be enforced, though how it is to be enforced is the subject of competing applications and will await determination at another time. I may be inferring too much by the alternative orders for enforcement sought by the wife in her Response viz that the concessions, as identified, are made but other than ‘uncertainty’, no other attack is made on the deed.
The respondent filed an Amended Initiating Application on 1 November 2016 which included two additional paragraphs as follows:
[34] That pursuant to section 90K of the Family Law Act (Cth), or alternatively to section 90KA, the Court order that the Financial Agreement entered into between the parties on 3 August 2006 be set aside or alternatively a declaration be made that the said Financial Agreement is not valid, enforceable or effective.
[35] In the absence of orders pursuant to Paragraph 34 of the Application, and subject to the Court ordering that the Agreement of 3 August 2006 should be enforced as if it were an Order of this Court, that the said Financial Agreement be enforced as particularised by the Applicant Wife upon disclosure of documents and information by the Respondent Husband.
On 1 November 2016 Senior Registrar Spink ordered the respondent to provide particulars of the grounds upon which she says the financial agreement should be set aside or be declared not valid, enforceable or effective and each party to file affidavits in relation to that issue.
The particulars were provided on 23 December 2016. In summary the grounds are:
a)Pursuant to s 90K(1)(d) there has been a material change in circumstances since the agreement was entered into and as a result the children or the respondent will suffer hardship if the agreement is not set aside;
b)Pursuant to s 90K(1)(b) or (e) the agreement should be set aside as a result of unconscionability at the time of entering into the agreement;
c)Pursuant to s 90K(1)(a) the agreement should be set aside as a result of the non-disclosure of a material matter amounting to fraud;
d)There is no agreement generally at law because it was abandoned;
e)There is no agreement generally at law because it was a sham.
In addition the respondent has filed her affidavit of evidence in chief in relation to those matters.
On 13 February 2017 the applicant filed an Amended Response to an Initiating Application seeking the following:
[12] That Orders 34 and 35 of the Final orders sought by the Respondent in her Amended Initiating Application filed in this Honourable Court on 1 November 2016 be summarily dismissed.
[13] That the Respondent pay the Applicant’s costs of and incidental to the application for summary dismissal of orders 34 and 35 of the Amended Initiating Application filed 1 November 2016 on an indemnity basis.
DISCUSSION
The principle under discussion is that articulated by the High Court in Port of Melbourne Authority v Anshun Pty Ltd[7] and in particular the statement approved of in that case from Sir James Wigram VC in Henderson v Henderson:8[8]
where a given matter becomes the subject of litigation in, and of adjudication by, a Court of competent jurisdiction, the Court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of matter which might have been brought forward as part of the subject in contest, but which was not brought forward, only because they have, from negligence, inadvertence, or even accident, omitted part of their case. The plea of res judicata applies, except in special cases, not only to points upon which the Court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation, and
which the parties, exercising reasonable diligence, might have brought forward at the time.
and upon the following statement by Murphy J[9]:
In this instance, the issue now sought to be raised was plainly open to be agitated in the previous litigation. The judgment in that case is inconsistent with the judgment now sought by the plaintiff. To preserve the orderly administration of justice the earlier judgment should be treated as conclusive on the question of indemnity. There is no discretion to allow the raising of that issue against the unwilling defendant; the attempt to do so is properly characterized as an abuse of process.
[7] (1981) 147 CLR 589 at 598; see also University of Wollongong v Metwally (No. 2) (1985) 60 ALR 68
[8] (1843) 67 ER at 319
[9] At 605
Although the proceedings have not been finalised that does not in my view preclude the application of an Anshun type estoppel. As observed by McClelland J in Brimaud v Honeysett Instant Print Pty Ltd:[10]
It would be conducive to great injustice and enormous waste of judicial time and resources if there were no limit on the power of a party to have an interlocutory application or order re-litigated at will.
[10] (1988) 217 ALR 44 at 46
I consider there to be much force in the applicant’s argument. The respondent, despite ‘notice, invitation and opportunity’, elected to limit her challenge to the financial agreement to one of uncertainty. The applicant invited the respondent as early as August 2015 to indicate her position in relation to the financial agreement. Her position, both in her filed Response to the Application in a Case and articulated by her Queen’s Counsel at the hearing on 27 May 2016 made her position abundantly clear, namely, if she lost on her argument as to uncertainty the next step would be how the agreement should be enforced and the respondent had set out the order she would seek in that event. The relief sought in her Initiating Application and Amended Initiating Application was consistent with the position put by her Queen’s Counsel at the hearing on 27 May 2016.
The circumstances of this case are somewhat unusual and compounded by the peculiarities of the Act which limits the circumstances in which this Court can grant declaratory relief. However, the outcome of the hearing on 27 May 2016 was that the financial agreement was enforceable. The next step in the proceedings was to address the competing applications as to how it was to be enforced.
In my view the respondent’s current position is unreasonable in the Anshun
sense and amounts to an abuse of process.[11] The Anshun principle has been treated as a ‘true estoppel and not as a form of res judicata in the strict sense.’[12] There can be no doubt, in my view, that the respondent’s current claim could and would have been heard at the same time as the earlier claim thereby minimising costs and avoiding the possibility of inconsistent outcomes.[13]
[11] ‘Anshun Today’: KR Handley (1997) 71 ALJ 934 at 940; Rahme v Commonwealth Bank of Australia (unreported) NSWCA, 20 December 1991
[12] Tomlinson v Ramsey Food Processing Pty Ltd (2015) 26 CLR 507 at [22]
[13] Bryant v Commonwealth Bank of Australia (1995) 57 FCR 287 at 298
I am not persuaded that there are special or exceptional circumstances in the sense identified in cases such as Bryant[14] or Metwally.[15] In the latter case the High Court said:
It is elementary that a party is bound by the conduct of his case. Except in the most exceptional circumstances it would be contrary to all principle to allow a party, after a case had been decided against him, to raise a new argument which, whether deliberately or by inadvertence, he failed to put during the hearing when he had an opportunity to do so.
[14] ibid
[15] supra
Accordingly, I propose to dismiss paragraph 34 of the respondent’s Further Amended Initiating Application.
As paragraph 35 raises matters of disclosure which have not been determined I do not propose to dismiss that part of the Application. Whether or not the disclosure that has occurred to date is deficient is a matter for another day and I will remit the matter to the Senior Registrar for further mention.
I certify that the preceding seventy-six (76) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Carew delivered on 3 August 2017.
Associate:
Date: 03 August 2017
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