Morris & Morris (No 4)

Case [2023] FedCFamC1F 931

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Morris & Morris (No 4) [2023] FedCFamC1F 931

File number: SYC 4955 of 2021
Judgment of: CAMPTON J
Date of judgment: 30 October 2023
Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Oral application by the husband for the wife to particularise specified matters relating to the validity of deed polls – Where the effectiveness and impact of those documents can be ascertained during the trial – Where no unfairness would arise – Application dismissed.
Legislation: Family Law Act 1975 (Cth) ss 79, 79SM, 106B
Cases cited:

Bevan & Bevan (2013) FLC 93-545; [2013] FamCAFC 116

Chapman & Chapman (2014) FLC 93-592; [2014] FamCAFC 91

Cosola & Moretto [2023] FedCFamC1A 61

Stanford v Stanford (2012) 247 CLR 108; [2012] HCA 52

Division: Division 1 First Instance
Number of paragraphs: 24
Date of hearing: 30 October 2023
Place: Sydney
Counsel for the Applicant: Mr Richardson SC with Mr Roberts of counsel
Solicitor for the Applicant: Barkus Doolan Winning
Counsel for the Respondents: Mr Kelly SC with Mr Smallbone and Dr Parkinson of counsel
Solicitor for the Respondents: Prime Lawyers

ORDERS

SYC 4955 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:

MS MORRIS

Applicant
AND:

MR MORRIS

First Respondent

D2 LIMITED

Second Respondent

F LIMITED ATF THE D TRUST (and another named in the Schedule)

Third Respondent

ORDER MADE BY:

CAMPTON J

DATE OF ORDER:

30 OCTOBER 2023

THE COURT ORDERS THAT:

1.The husband’s oral application for the wife to particularise by way of points of claim the matters identified in Exhibit 1 is dismissed.

Note:   The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

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

EX TEMPORE REASONS FOR JUDGMENT

CAMPTON J:

  1. Pursuant to an oral application made at the commencement of the hearing today, 30 October 2023, Mr Morris (“the husband”) seeks a direction that Ms Morris (“the wife”) file points of claim particularising matters as contained in an exchange between the respective solicitors over the weekend prior to the commencement of the trial as contained in Exhibit 1. Such exchange occurred from Saturday afternoon, 28 October 2023 until yesterday afternoon, Sunday, 29 October 2023. The application includes the broad identification of a short timetable for the provision of…

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AGLC
Morris & Morris (No 4) [2023] FedCFamC1F 931
Case
[2023] FedCFamC1F 931
Decision Date

CaseChat Overview and Summary

The husband, Mr Morris, applied to the Federal Circuit and Family Court of Australia in the context of ongoing property settlement proceedings between him and his former wife, Ms Morris. Mr Morris sought an order for Ms Morris to particularise certain matters relating to the validity of three deed polls which he had executed in September 2023, intended to transfer to Ms Morris his beneficial interest in three real properties. The application was heard and dismissed by Campton J. The primary legal issue before the court was whether Ms Morris should be required to particularise the matters set out in Exhibit 1. This exhibit contained a disclaimer executed by Ms Morris, in which she disclaimed any grant of interest made by Mr Morris in the properties pursuant to the deed polls.

Campton J considered the circumstances under which the application was made, including the advanced state of the litigation and the availability of the evidence necessary to determine the effectiveness and impact of the deed polls. The court noted that the substantive trial was scheduled to commence over seven days and that the evidence would be available during the trial. The judge was of the view that requiring Ms Morris to particularise the matters at that stage would not cause unfairness to either party, as the evidence was readily ascertainable. Furthermore, the court found that compelling Ms Morris to particularise the matters would not be in the interests of justice given the advanced stage of the proceedings. Accordingly, the court dismissed the application.

The court’s reasons for dismissing the application were based on the principle that requiring particularisation at such a late stage would not be fair or just. The court also found that the evidence necessary to determine the validity of the deed polls would be available during the trial, and that compelling particularisation would not serve the interests of justice. The final order of the court was that the application be dismissed.

Orders

Orders of the court

SYC 4955 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MS MORRIS

Applicant

AND:

MR MORRIS

First Respondent

D2 LIMITED

Second Respondent

F LIMITED ATF THE D TRUST (and another named in the Schedule)

Third Respondent

ORDER MADE BY:

CAMPTON J

DATE OF ORDER:

30 OCTOBER 2023

THE COURT ORDERS THAT:

1. The husband’s oral application for the wife to particularise by way of points of claim the matters identified in Exhibit 1 is dismissed.

Note: The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

Background

Background to the litigation

Some background as to the history of, and conduct of the parties in, the litigation is necessary to give context to this determination.BACKGROUND The husband and the wife commenced cohabitation in or around 1997 and married in 1999. Although initially subject to some agitation, they separated on or about 8 March 2021. The wife commenced proceedings for adjustment of property on 7 July 2021. The husband, by way of a Response filed 18 October 2022, sought dismissal of the wife’s application (as amended) and, in the alternative, different orders adjusting property. Directions for trial as part of the Major Complex Financial Proceedings list were made on 26 August 2022, including directing that the substantive trial would commence over seven days from today, 30 October 2023. Additional respondents were joined to the proceedings by way of orders made 6 December 2022. Further directions were made varying the timetable for the filing of trial affidavits. The primary affidavit of the wife for trial was filed on 1 December 2022 and a further affidavit was filed on 13 May 2023. The husband’s primary affidavit for trial was filed 23 March 2023 with additional affidavits being filed 18 and 29 September 2023. Points of claim or pleadings have been filed by the parties as to what might be described as New Zealand matters. Those pleadings closed by way of the wife’s defence to points to crossclaim filed 6 September 2023. It is broadly accepted that throughout the course of the litigation the wife has sought relief pursuant to s 79 of the Family Law Act 1975 (Cth) (“the Act”) such that three real properties held in the joint names of the parties, two in Australia at Suburb O and Suburb S and one in City Z, Country BB, be transferred to her. It is relatively uncontroversial that during the course of the litigation, as identified in the affidavit material of the parties, the husband proposed to gift and/or transfer the properties to the wife, and that the wife indicated that she would accept those properties by way of it being recognised that they effected a partial determination of her s 79 claim. The parties could not agree as to the characterisation of any such transfer of the husband’s legal interest in the properties to the wife and hence they remained in the joint names of the parties. Against that background, in September 2023 the husband executed three deed poll instruments. He contends their effect was to provide full beneficial ownership of the three properties to the wife. The exchange as between the respective solicitors over the last two days as contained within Exhibit 1 start with the wife executing a document dated 28 October 2023 in the following terms:DISCLAIMERTO: [MR MORRIS] I, [Ms Morris], hereby disclaim any grant of interest made or purported to be made in my favour by [Mr Morris] pursuant to each of the Deeds Poll dated September 2023 in respect of his right, title and interest in the properties at [N Street], [Suburb O], NSW; [R Street], [Suburb S], NSW; and [H Street], [City Z], [Country BB], as provided under cover of letter dated 18 September 2023 from Prime Lawyers to Barkus Doolan Winning Lawyers, as referred to in paragraph 7, 8 and 35 of the affidavit of [Mr Morris] filed 27 September 2023 and [Exhibits HM-T2] at pages 2-7 and 8-11 thereto.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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