Marlowe-Dawson and Dawson (No. 2)

[2012] FamCA 808

FAMILY COURT OF AUSTRALIA

MARLOWE-DAWSON & DAWSON (NO. 2) [2012] FamCA 808

FAMILY LAW - PROPERTY - Application for summary dismissal - Where the Applicant was given leave to file a Second Amended Initiating Application on the first day of trial - Where the Respondent contended that such application ought be summarily dismissed as it was 'doomed to fail' - Where the application requests that a percentage of the Husband's future income stream be awarded to the Wife as a s 79 property Order - Where the Respondent disputes that this Court has the power to make such an Order - Where it cannot be said that the application is 'doomed to fail' despite significant doubts attending it

Family Law Act 1975 (Cth)

Beck & Beck (2004) FLC 93-181
Bigg & Suzi (1998) FLC 92-799
Ferrall & Blyton (2000) FLC 93-054
Lindon v The Commonwealth of Australia (No 2) (1996) 70 ALJR 541
Pelerman & Pelerman (2000) FLC 93-037
Prior & Prior (2002) FLC 93-105
Re Watson; Ex parte Armstrong (1976) FLC 90-059

APPLICANT: Ms Marlowe-Dawson

RESPONDENT: Mr Dawson

FILE NUMBER: SYC 53 of 2011

DATE DELIVERED: 18 September 2012

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Kent J

HEARING DATE: 18 September 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Kirk SC

SOLICITOR FOR THE APPLICANT: Hopgood Ganim

COUNSEL FOR THE RESPONDENT: Mr Richardson SC
Ms Black

SOLICITOR FOR THE RESPONDENT: Barkus Doolan Kelly

Orders

1. The Husband’s application for summary dismissal be dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Marlowe-Dawson & Dawson (No. 2) 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 BRISBANE

FILE NUMBER: SYC 53 of 2011

Ms Marlowe-Dawson

Applicant

And

Mr Dawson

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. The principles I am bound to apply to the Husband’s application to summarily dismiss, without trial, the Wife’s application for the subject Orders as contained in the Second Amended Initiating Application, are well-settled by authority. Those authorities include Lindon v The Commonwealth of Australia (No 2) (1996) 70 ALJR 541, especially at 544-545; Bigg & Suzi (1998) FLC 92-799; Pelerman & Pelerman (2000) FLC 93-037; Ferrall & Blyton (2000) FLC 93-054; Prior & Prior (2002) FLC 93-105; Re Watson; Ex parte Armstrong (1976) FLC 90-059, 75,269-25,270; Beck & Beck (2004) FLC 93-181.

2. Those principles require that first, I recognise that the Husband, as the applicant for summary dismissal, bears the onus of proof on the application; second, that the application be considered on the basis that the Husband has no right to challenge any facts asserted in evidence by the Wife, nor to seek to contradict any inferences that might be drawn from that evidence; third, that the Husband, as applicant, must discharge his onus to demonstrate, on the face of the Wife’s material and assuming in favour of Wife the matters of fact upon which she relies and any inference which might be drawn from that evidence, that her substantive application, as a matter of law, is so clearly untenable that it could not possibly succeed, or is ‘doomed to fail’; fourth, and importantly, that if there is a serious legal question to be determined, it should ordinarily be determined at a trial; and fifth and finally, that the discretionary power to summarily dismiss is rarely and sparingly provided and exercised.

3. Fundamentally, I am of the view that on balance and not without hesitation, that serious legal questions attend, first, the nature of the Husband’s rights with respect to what has been terms by the Wife as his, “…interest’ in the [Business K LLP property],” including questions about the Wife’s contention for an inference to be drawn that his interest is in the nature of a partnership or equity interest or its equivalent vis-à-vis the ‘bundle’ of rights he is said to hold including his right under his current employment contract and the letter of offer which it incorporates. Second, that whether those interests are ‘property’ or are capable of being treated as property within the meaning of s 79 of the Family Law Act 1975 (Cth), and third, whether the Orders as framed on behalf of the Wife and for which she contends are in truth s 79 Orders.

4. For all the reasons identified by Senior Counsel for the Husband in the course of argument, which I do not intend to restate here, significant doubt attends the merits of each of the fundamental contentions of the Wife referred to, but in the end, I am of the view that there are serious legal questions and under the principles I am bound to apply to which I have referred, these ought ordinarily be heard at a trial. Secondly, whatever doubts I have about the merits of the Wife’s contentions, I am not, in the end, persuaded that they are so clearly untenable that they are doomed to fail. Relevant to the discretion, it seems to me, is that today is to be the first of four days of the trial proper of the substantive issues, and in circumstances where there are legal questions as referred to, it seems to me that it is relevant to the discretion, a sparing one in any event, that it not be exercised in these circumstances.

5. I therefore decline the application to summarily dismiss the Wife’s application in the respects identified in that application.

I certify that the preceding five (5) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Kent delivered on 18 September 2012.

Associate: 

Date:  20 September 2012