Monaco and Daniels and Anor - [2021] FCWA 49

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA
ACT: FAMILY LAW ACT 1975
LOCATION: PERTH
CITATION: MONACO and DANIELS & ANOR [2021] FCWA 49
CORAM: O'BRIEN J
HEARD: 27 JANUARY 2021
WRITTEN SUBMISSIONS
DELIVERED : 26 MARCH 2021
FILE NO/S: PTW 292 of 2008
BETWEEN: MR MONACO
Applicant
AND
MS DANIELS
First Respondent
AND
MR HIGGS
Second Respondent

Catchwords:

SUMMARY DISMISSAL – Where the wife applies for summary dismissal of the husband's application to set aside property orders made by consent in 2008 – Where the husband's application asserts a miscarriage of justice by reason of duress, fraud, relevant non-disclosure or error in the exercise of the court's discretion in making the consent orders – Where the husband's application asserts further or in the alternative that the court should infer consent of the parties to set aside the orders – Where the husband further asserts that circumstances of an exceptional nature relating to the care, welfare and development of a child have arisen since the making of the orders such that hardship would be suffered if they are not set aside and another order made in substitution for them – Consideration of the relevant law in relation to each component of the husband's claim, and the husband's case at its highest – Where the husband's application has no reasonable prospect of success – Husband's application summarily dismissed.

Legislation:

Family Law Act 1975 (Cth)
Family Law Amendment (Family Violence and Other Measures) Act 2018 (Cth)
Jurisdiction of Courts (Cross-vesting) Act 1987 (WA)

Category: Not Reportable

Representation:

Counsel:

Applicant	:	Ms Everett
First Respondent	:	Ms Henderson
Second Respondent	:	Self-Represented Litigant

Solicitors:

Applicant	:	WL & KJ Everett
First Respondent	:	Chris Williams Lawyer & Mediator
Second Respondent	:	Self-Represented Litigant

Case(s) referred to in decision(s):

Australia & New Zealand Banking Group Ltd v Karam (2005) 64 NSWLR 149
Badawi & Badawi (2017) FLC 93-784
Bain Pacific Associations & Ors and Kelly & Ors (2006) FLC 93-270
Baker v The Queen (2004) 223 CLR 513
Barker v Barker (2007) 36 Fam LR 650
Beck & Beck (2004) FLC 93-181
Bigg v Suzi (1998) FLC 92-799
Black & Kellner (1992) FLC 92-287
Bourke v Bourke (No 2) (1994) FLC 92-479
Byrnes v Kendle (2011) 243 CLR 253
Cantrell & North and Anor (2020) FLC 93-976
Commercial Bank of Australia Ltd v Amadio (1983) 151 CLR 447
Daily & Daily (2020) FLC 93-999
Gadzen & Simkin (2018) FLC 93-871
Garden v Gavin (No 2) (2010) 43 Fam LR 383
Hall and Hall (1979) FLC 90-679
Harris v Caladine (1991) 172 CLR 84
In the marriage of Briese (1986) FLC 91-713
In the marriage of Clifton and Stuart (1991) FLC 92-194
In the marriage of Fagan and Fagan (1985) FLC 91-607
In the marriage of Gebert and Gebert (1990) FLC 92-137
In the marriage of Green and Kwiatek (1982) FLC 91-259
In the marriage of Holland and Holland (1982) FLC 91-243
In the marriage of McCabe and McCabe (1995) FLC 92-634
In the marriage of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2021] FCWA 49
Decision Date: 26 MARCH 2021

CaseChat Overview and Summary

Monaco and Daniels and Anor involved a dispute where the wife sought to have the husband's application for setting aside consent property orders summarily dismissed. The orders in question were made by consent in 2008, and the husband sought to have them set aside on several grounds, including duress, fraud, relevant non-disclosure, error in the exercise of the court's discretion, or by inferring consent to set aside the orders. The husband further argued that exceptional circumstances had arisen since the orders were made relating to the care, welfare, and development of a child, justifying a substitution of orders to prevent hardship. The court was tasked with determining whether the husband's application had any reasonable prospect of success.

The legal issues centred on the criteria for setting aside consent orders and the exceptional circumstances necessary to justify such action. The husband had to demonstrate that the orders were obtained through duress, fraud, or non-disclosure, or that there was an error in the exercise of the court's discretion. Alternatively, he needed to show that the exceptional circumstances regarding the child's welfare warranted a substitution of orders. The court had to weigh the husband's arguments against the established legal principles and the evidence presented.

The court found that the husband's application lacked any reasonable prospect of success. It concluded that the husband failed to substantiate his claims of duress, fraud, or non-disclosure, and there was no evidence of an error in the exercise of the court's discretion. Additionally, the husband did not demonstrate exceptional circumstances that would justify setting aside the orders. The court was not persuaded that the husband's arguments met the necessary threshold for reconsideration of the consent orders. Accordingly, the husband's application was summarily dismissed.

The court made no orders as to costs.

Orders