Hughes and Hughes

[2008] FamCA 132

FAMILY COURT OF AUSTRALIA

HUGHES & HUGHES [2008] FamCA 132

FAMILY LAW – PROPERTY – Prior orders – Summary dismissal sought and not granted – Case management orders

Family Law Act 1975 (Cth)

APPLICANT: MRS HUGHES

RESPONDENT: MR HUGHES

FILE NUMBER: MLC 10156 of 2007

DATE DELIVERED: 3 MARCH 2008

PLACE DELIVERED: MELBOURNE

PLACE HEARD: MELBOURNE

JUDGMENT OF: YOUNG J

HEARING DATE: 3 MARCH 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: MS TREYVAUD

SOLICITOR FOR THE APPLICANT: C.A. HAYWOOD & ASSOCIATES

COUNSEL FOR THE RESPONDENT: MR INDOVINO

SOLICITOR FOR THE RESPONDENT: HARWOOD ANDREWS

ORDERS

IT IS ORDERED:

1. THAT the application in a case filed by the wife on 4 February 2008 and the husband’s response thereto filed 27 February 2008 be dismissed.

2. THAT the extempore reasons for judgment be transcribed, be placed upon the Court file and be made available to the parties.

3. THAT a financial conciliation conference be appointed for 11.00 a.m. on 30 May 2008 before Registrar Kaur and the parties be directed to attend and make a bona fide endeavour to resolve all outstanding issues and for that purpose the initiating Form 1 application of 11 September 2007 and the subsequent amended application be adjourned to that next court event.

4. THAT within twenty-eight (28) days the husband make, file and serve:

   (a)an amended application detailing with particularity the basis for his orders sought pursuant to s79A of the Family Law Act 1975;

   (b)an affidavit in support thereof;

   (c)a Form 13 financial statement.

5. THAT within a further twenty-eight (28) days the wife make, file and serve:

   (a)         a response to the husband’s further affidavit;

   (b)         an affidavit of her responding evidence in chief;

   (c)         an updated Form 13 financial statement.

6. THAT the parties forthwith instruct their solicitors to appoint a duly qualified valuer(s) to inspect and provide a current market value of the residential property at Aand the farming property at N and the cattle thereon, such valuation to be obtained at the joint expense of the parties pending further order of the Court.

7. THAT otherwise the parties provide for an exchange of all documents by way of mutual and informal discovery and for that purpose make available all relevant documents as otherwise are identified in the procedural orders of the Court (standard paragraph 21 thereof).

8. THAT the costs of each of the husband and wife of and incidental to this day be fixed in the sum of $3,000 and the question of any payment thereof be adjourned for determination by the trial Judge or otherwise as the parties may themselves agree.

IT IS CERTIFIED

1. THAT pursuant to Rule 19.50 of the Family Law Rules this matter reasonably required the attendance of Counsel for each of the husband and wife.

IT IS NOTED that publication of this judgment under the pseudonym Hughes & Hughes is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 10156 of 2007

MRS HUGHES

Applicant

And

MR HUGHES

Respondent

REASONS FOR JUDGMENT

1. The matter of Hughes is before me in the Judicial Duty List. Mr Indovino of counsel appears for the husband; Ms Treyvaud of counsel for the wife. Both parties and instructing solicitors are in court. This matter does have a long history for this court and there were orders made on 30 June 2001 resolving the property and financial issues of the parties. Subsequently, on 23 June 2003, there were orders made between the parties and Mr J, the trustee in bankruptcy of the estate of the husband. Those orders provided for a variation pursuant to section 79A of the Family Law Act of the earlier consent orders made in September 2001.

2. The effect of the orders then made was that the wife paid to the applicant trustee for the benefit of the husband's estate in bankruptcy a sum of $450,000.  Thereafter, these orders were intended to satisfy all claims of that trustee and that seemingly remains the situation as at this day because the prior debts of the husband were paid and the bankruptcy trustee has no further interest or involvement in these proceedings.  Otherwise the effect of the order made was for the wife to retain the furniture, chattels and property or moneys arising from any sale of property.  The parties to the order were expressed to be the applicant trustee and the wife, and the husband was not a party to the orders or to the negotiations which led up to those final consent orders of 23 June 2003.

3. Interestingly, there is a notation to the orders that may hereafter become relevant and that is that the orders are made pursuant to section 79A of the Act and they were to finally extinguish any claim which the husband or his bankrupt estate may have had against the wife. How that notation, it is not an order and does not have the effect of an order, can be held against the husband without his knowledge or involvement, if indeed that be the evidence, is a matter for further hearing. With that background, I record that this is the case of a long marriage, certainly no less than 21 years, and thereafter the parties are in dispute as to the date of any final or arranged separation. There are three children of the marriage and, for the purposes of this interlocutory application, I do not need to further investigate the facts and financial circumstances of the marriage.

4. The Form 1 application now before the court was filed 11 September 2007 by the husband.  Annexed to that application is the sealed copy of the order of 23 June 2003 and the order of 30 June 2001, which is signed personally by the husband and wife, and counter-signed by the wife's solicitor.  The subsequent coversheet of 10 September seemingly records the day the court pronounced the orders which the parties concluded in their private discussions in June of that year.  The Form 1 application seeks orders for a division of property under section 79 of the Act and at that stage the husband sought leave to further particularise the grounds of his application at a later date.

5. Subsequently the amended application for final orders was filed by the husband on 28 November 2007 and annexed to that document are the particulars of orders now sought.  Those orders allege a miscarriage of justice and, as a blanket overview, highlight the alleged miscarriage of justice because of,

   Fraud, suppression of evidence, failure to disclose relevant information or the giving of false evidence.

6. The particulars highlighted mostly go to the alleged agreement between the parties to defeat the then existing judgment creditors and to highlight the financial benefit that the wife gained from the sale of the property in western Melbourne.  The husband itemises his claim before the court seeking a payment of $850,000.  I have generally indicated to counsel during submissions that there is need for further and better particulars of those orders sought to be drafted and to form the basis for an ongoing application.  Ultimately there are sufficient matters and facts that can be read and understand from the affidavit supporting the respondent's case to justify, in my opinion, a further hearing.  That means the dismissal of an application to strike that property application of the husband from the record.  Nevertheless, the particulars do need much refinement.

7. Having identified each of the husband's applications, the wife on 4 February filed an application in a case on the basis that the amended application of the husband should be dismissed with costs.  In support thereof, she filed her affidavit of 4 February 2008.  Thereafter the husband filed a response on 27 April 2008 seeking the dismissal of the wife's interim application and in support of his application filed a further affidavit of 27 February 2008 and a bundle of supporting affidavits, approximately seven in number, deposing to matters and facts of and incidental to the marriage and the financial relationship and dealings of the parties.

8. The issue before the court in this Judicial Duty List and for these extempore reasons is whether or not the wife's application should be successful and the proceedings of the husband summarily dismissed.  Whilst Ms Treyvaud has, on instructions, submitted argument in support of that outcome, ultimately, and with some little questioning from myself, has not pursued to that end her client's application.  That was a proper decision.  The authorities in terms of any summary dismissal of an application are clear.  I have identified in discussion with counsel a number of authorities, the more recent of which is the matter of Beck v Beck (2004) FLC 93-181, a decision of the Full Court.

9. The principles arising from that judgment, and earlier and subsequent judgments, are clear.  The power for summary dismissal is discretionary and relief is rarely and sparingly provided.  What needs to be shown is that the cause was totally lacking in persuasive credit and in reality the expression that is often used is that the applicant for a summary dismissal must show that the application otherwise is, "Doomed to failure."  The court must approach the consideration of evidence on the basis of considering only the material put forward by the respondent to that application and support for that proposition is clearly to be found in the judgment of Kirby J in Lindon v The Commonwealth (No.2) (1996) 70 ALJR 541 at page 544. I have otherwise been referred by Ms Treyvaud to Korsky v Bright and Anor (2007) FLC 93-352, which I have considered over the luncheon recess.

10. There are some troubling aspects on the surface of this case which highlight an attempt by both these parties to either defraud or to quarantine assets from creditors.  At the end of the day I now know that all creditors are paid and either because of escalation in property values or the good management by the wife, or whatever other reason may ultimately be proved, there is now said to be a considerable asset pool represented by two properties which the wife has subsequently acquired.  The husband seeks a just and equitable division of assets on the basis of his prior contribution section 79(4) and section 79(2) of the Act.  These matters must await trial and I do not comment upon them at this stage.

11. It is with this background, however, that I do conclude that the husband's material and those of his witnesses are sufficient to highlight that he does have an issue genuinely to be before the court for determination.  He will be required to amend and sufficiently identify the grounds on which he relies to set aside those original property orders.  I propose to have management orders in place so that the parties can explain their case, their argument and indeed their contribution and section 75(2) factors to the court so that when the matter comes on for a financial conciliation conference on 30 May 2008 at 11.00 a.m., the court can be in a position to understand the relative merits of each case and, more particularly, both parties can fully understand the way the other is putting their case to the court in the hope that there might be some level of commercial commonsense and reality, subject always to the requirements of the Act and whether or not there genuinely was an informed and proper settlement back in January 2001.

12. For those brief reasons delivered ex tempore, I intend now to dismiss the wife's claim for the husband's case to be summarily dismissed and to permit this matter to proceed towards hearing, subject to compliance with all case management issues.  I will have these reasons transcribed, placed on the file and made available to all parties.  I will otherwise dismiss the application in a case; that is, the interim application of the wife and the husband's response thereto and the matter then can work its way through the list subject to some proper level of commonsense being brought to the matters and facts in issue.

I certify that the preceding paragraphs are
a true copy of the reasons for judgment herein
of The Honourable Justice Young

………………………………………………………..
Associate:          
Date: 6 March 2008