Harford & Spalding

In *Harford & Spalding*, Henderson J of the Federal Circuit and Family Court of Australia considered an application by the wife for the summary dismissal of the husband's initiating application. The husband sought to set aside consent orders made in relation to the division of the parties' property, including a self-managed superannuation fund of which the wife was trustee, and a Binding Financial Agreement concerning spouse maintenance. The husband's grounds for setting aside these orders and the agreement were based on allegations of the wife's failure to disclose the true value of certain assets, specifically clothing and accessories, and misleading the Court.

The central legal issue before the court was whether the husband had an arguable case to set aside the consent orders pursuant to section 79A(1) of the *Family Law Act 1975* (Cth) and the Binding Financial Agreement under section 90K of the Act. The wife contended that the husband's claims lacked merit and should be dismissed summarily, without proceeding to a full hearing.

Henderson J reasoned that for summary dismissal to be granted, the husband's case must be demonstrably without merit or so weak that it could not succeed. The husband's case, as presented, alleged that the wife had provided false and misleading valuations of designer clothing and items from J Company, and had failed to disclose their true value in her financial statement and the balance sheet presented to the court. He further argued that the wife's subsequent actions, such as listing items for auction with significant prospective value, were inconsistent with her previous representations and indicated a deliberate suppression of evidence. The court found that these allegations, if proven, could establish grounds for setting aside the consent orders and the Binding Financial Agreement due to a miscarriage of justice.

Consequently, Henderson J dismissed the wife's application for summary dismissal. The court concluded that the husband had presented an arguable case, meaning that his claims were not so obviously unsustainable as to warrant dismissal without a full hearing. The matter was therefore to proceed to a trial to determine the merits of the husband's allegations.