Hunter and Morrison (Summary Dismissal)

[2014] FamCA 199

FAMILY COURT OF AUSTRALIA

HUNTER & MORRISON (SUMMARY DISMISSAL) [2014] FamCA 199

FAMILY LAW – PROPERTY – Section 79A – Where the wife applied to set aside a consent order and that a revised just and equitable final property order be made – Where the husband sought an order that the wife’s application be summarily dismissed – Where the court noted that in determining an application for summary dismissal, the court may only have regard to the material relied upon by the respondent to the application for summary dismissal – Where the court noted that the onus of persuading the court that there is no reasonable likelihood of success rests with the applicant to the application for summary dismissal – Where the court noted the husband must show the wife’s claim is foredoomed to failure by showing either that none of the stated grounds in s79A have any prospect of being established or that even if establish there is insufficient prospect of the court exercising the discretion to vary or set aside the order under s79 – Where on the wife’s material there was a failure by the husband to disclose relevant information – Where the question is whether the wife has any prospects of success fully demonstrating that the failure led to a miscarriage of justice – Where the court found the wife’s application insofar as it seeks relief under s79A has sufficient prospects of success – Where the court found sufficient prospects of success in persuading the court to exercise discretion under s79 to either vary or set aside or substitute the order – Where summary dismissal refused.

Family Law Act 1975 (Cth) ss 79A
Family Law Rules 2004 r 10.12

Pelerman (2000) FLC 93-037
Barker v Barker [2007] FamCA 13
Stanford v Stanford (2012) 247 CLR 108
Nadu v Vedru [2008] FamCA 435
Wagner v Wagner [2009] FamCAFC 16
Pompidou v Pompidou [2007] FamCA 878
Morison v Morison (1995) FLC 92-573

APPLICANT: Ms Morrison

RESPONDENT: Mr Hunter

FILE NUMBER: TVC 13 of 2010

DATE DELIVERED: 28 March 2014

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Tree J

HEARING DATE: 18 March 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: In Person

COUNSEL FOR THE RESPONDENT: Mr McGregor

SOLICITORS FOR THE RESPONDENT: McAlisters Cartmill

Orders

IT IS ORDERED BY CONSENT THAT:

1. Paragraphs 3 and 16 of the Wife’s Amended Initiating Application filed 4 July 2012 be struck out.

AND IT IS FURTHER ORDERED THAT:

1. The Husband’s Application in a Case filed 8 August 2012 be dismissed.     

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

FAMILY COURT OF AUSTRALIA AT

FILE NUMBER: TVC 13/ 2010

Ms Morrison

Applicant

And

Mr Hunter

Respondent

REASONS FOR JUDGMENT

INTRODUCTION  

1. On 12 August 2009, Magistrate J Hodgins made final orders with the consent of the parties in relation to both children’s and property matters.…