Morris & Morris (No 4)
[2023] FedCFamC1F 931
•30 October 2023
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:
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 the points of claim and the filing of points of defence.
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:
DISCLAIMER
TO: [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.
That document was forwarded by the wife’s solicitors to the husband’s solicitors at 2.51 pm, two days ago, 28 October 2023.
By way of a letter yesterday, 29 October 2023, the solicitors for the husband sought clarification of what the wife contended was an issue as to the validity of the said deed polls dated September 2023 and the foundation for a contention alleging any aspect of their invalidity. The letter further identified a particular paragraph of the wife’s Case Summary document filed 25 October 2023 (Exhibit 2) which also canvassed an issue as to the validity and effect of the entry of the deeds poll.
The letter from the husband’s solicitor identifies that it is a matter for the wife to plead and particularise by points of claim the foundations where she contends an invalidity or an absence of validity of the deed polls and/or the foundations by which she seeks to set them aside so that the husband can have an opportunity to articulate his defence.
In response, the solicitors for the wife by way of an email sent yesterday afternoon, 29 October 2023 at 5.57 pm, again highlighted an issue at trial as to the validity of the deeds poll and if they are valid, the fact of her disclaimer. It is her case that it is not necessary for her to particularise any matter. As identified in submissions today, she says that it is a matter for the husband to establish the effect of the documents, whether by way of law within NSW or law within Country BB.
She foreshadowed an application to potentially seek relief pursuant to s 106B of the Act to set aside the deed polls in circumstances where it could be her case that they diminish her claim, identifying the revenue obligations inflicted upon the value of the property of the parties should they be effective.
It is the submission of the husband that the conduct of the wife, in disclaiming the deeds poll, identifies what he referred to as the first limb in Stanford v Stanford (2012) 247 CLR 108 (“Stanford”) being a relevant matter in the Court making a determination not only as to the legal but also the beneficial ownership of the properties of the parties. Importantly, it is submitted that the conduct of the wife in delivering the disclaimer “goes to the heart of the section 79(2) question”. The submission of the husband is that the wife’s renouncement of the deed poll instruments goes to “what she claims” and goes to “the section 79(2) point”. The husband identifies that it is important for him to understand the contentions as to an absence of validity or invalidity mounted by the wife as to whether they be technical issues, matters of law, matters of substance, or matters of capacity. He suggests that he needs to know this before the case starts so that he can meet whatever the wife’s case is.
It is the wife’s submission that the husband has attempted to reconstruct the property positions of the parties to “create a new reality” in what is at least implicitly submitted to be an attempt to circumvent a determination of the substantive dispute as between the parties.
Much of the agitation that has existed in recent times in this litigation, as recorded in these reasons and identified in my management of the proceedings to date, appears to have not considered what was identified by the Full Court in Cosola & Moretto [2023] FedCFamC1A 61 (“Cosola”). In that case the primary judge determined it was not just and equitable to make an order adjusting the property interests of the parties, being informed extensively by a consideration of the matters relevant to s 79SM(4) of the Act (or in this proceeding s 79(4) of the Act). The Full Court considered a ground of appeal as to whether the primary judge erred in adopting an approach to the consideration of, for the purposes of this matter, the interrelationship between ss 79(2) and 79(4) of the Act by way of conforming with the principles identified in Bevan & Bevan (2013) FLC 93-545. The judgment in Cosola records that insofar as the Full Court in Chapman & Chapman (2014) FLC 93-592 (“Chapman”) said that the s 79(2) inquiry could be determined absent a consideration of the s 79(4) matters, the Full Court in Chapman may have impermissibly extended what the High Court said or, more accurately, did not say in Stanford.
There is currently an issue that may be the subject of leave to appeal to the Full Court that may or may not impact upon the continuation of this trial. It is not anticipated that there will be any clarity in respect of that matter until, potentially, tomorrow, 31 October 2023.
Notwithstanding the husband’s contention that the validity of the deed polls is self-evident, I am satisfied that it is a matter for the husband to establish to the requisite degree the effectiveness and impact of those instruments in the course of the s 79 litigation. It is open for the wife in the circumstances to challenge by the ordinary course the effectiveness of those documents. It is possible in the course of the cross-examination of the wife for the husband to ascertain by way of that process, without being surprised, the foundations by which she disclaims the grant of any interest made or purportedly made in her favour pursuant to the deed polls. It is a matter for the wife to test the husband in cross-examination as to the foundations for, and other matters that she considers relevant to, the said instruments.
In all the circumstances, I am of the view that no unfairness will be occasioned to either party cast against the history of the litigation, the quality of their legal representation and the respective positions that they have taken in respect of the subject matters pursuant to this determination.
The wife has by way of the Minute of Order contained within Exhibit 2 amended her relief sought with leave such that her relief pursuant to s 106B of the Act seeking to set aside the deed polls. That relief has been included in the matters listed for trial absent the husband’s objection.
In the circumstances, the oral application of the husband is dismissed.
I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Campton. Associate:
Dated: 2 November 2023
SCHEDULE OF PARTIES
SYC 4955 of 2021 Respondents
Fourth Respondent:
E LIMITED ATF THE D TRUST
2
1