Morse & Duarte (No 2)

Case [2022] FedCFamC1F 152

Federal Circuit and Family Court of Australia

(DIVISION 1)

Morse & Duarte (No 2) [2022] FedCFamC1F 152

File number(s): SYC 737 of 2014
Judgment of: HARPER J
Date of judgment: 17 March 2022
Catchwords:

FAMILY LAW – PRACTICE AND PROCEDURE – Summary dismissal application – Where property proceedings remitted for rehearing after successful appeal - Whether the husband’s Fifth Amended Initiating Application should be summarily dismissed – Whether initiating application has reasonable prospects of success – Whether initiating application is vexatious or an abuse of process – Where further consideration of property adjustment inherent in order remitting proceedings for rehearing – Whether second respondent holds registered legal interest in property but made no contribution to purchase – Where Court must determine the question whether property held on trust for wife or wife and husband – Whether the husband's application should be dismissed for non-compliance with pre-action procedures under repealed rules of court or a procedural order – Summary dismissal application dismissed – Proceedings listed for future mention.

FAMILY LAW – PRACTICE AND PROCEDURE – appropriate procedure for variation of parenting orders – Where wife seeks further parenting orders after final hearing and unsuccessful appeal – Where fresh parenting orders sought in an Application in a Case seeking summary dismissal of an amended Initiating Application filed after property proceedings remitted for rehearing after successful appeal – Inappropriate procedure – Application dismissed

Legislation:

Family Law Act 1975 (Cth) ss 45, 74, 78, 79, 106B

Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 46, 50, 132

Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Rules 2021 (Cth) s 7

Federal Court of Australia Act 1976 (Cth) s 31A

Family Law Rules 2004 (Cth) Sch 1, r 10.06, 11.02, 13.05

Family Law Repeal Rules 2021 (Cth) Sch 1

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 1.31, 1.33, 10.09, 10.11
Cases cited:

Bigg & Suzi (1998) 22 Fam LR 700;

Bretton & Bondai [2013] FamCAFC 168

Clayton v Bant (2020) 62 Fam LR 16; [2020] HCA 44

D'Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1

Duarte and Anor & Morse (2019) 59 Fam LR 323; [2019] FamCAFC 93

Ebner & Pappas [2014] FamCAFC 229

Friar & Friar [2011] FamCAFC 71

Karlsson & Karlsson [2020] FamCAFC 207

Korsky & Bright (No 2) (2007) 38 Fam LR 106; [2007] FamCA 1512

Lindon v Commonwealth of Australia (No 2) (1996) 136 ALR 251

Morse & Duarte (2017) 58 Fam LR 131; [2017] FamCA 1039

Olman & Teitzel [2020] FamCAFC 136

Pelerman & Pelerman (2000) 26 Fam LR 505; [2000] FamCA 881

Port Melbourne Authoirty v Anshun Pty Ltd (1981) 147 CLR 589; [1981] HCA 45

Pullman & Pullman (2013) 50 Fam LR 460; [2013] FCCA 31

Reichel v Magrath (1889) 14 App Cas 665

Ridgeway v The Queen (1995) 184 CLR 19; [1995] HCA 66

Rice & Asplund [1978] FamCA 84, (1979) FLC 90-725, 6 Fam LR 570

Ritter & Ritter

Continue reading Morse & Duarte (No 2)

Sign in free to access the full text

Details
AGLC
Morse & Duarte (No 2) [2022] FedCFamC1F 152
Case
[2022] FedCFamC1F 152
Decision Date

CaseChat Overview and Summary

In Morse & Duarte (No 2), the parties were involved in ongoing property and parenting proceedings within the Family Court of Australia. The husband filed a summary dismissal application in relation to the wife's application for parenting orders, seeking to have the wife's application dismissed. The wife had filed an Application in a Case, which the husband sought to have dismissed on various grounds, including the argument that the Application in a Case was an inappropriate procedure. The wife also sought further parenting orders after the final hearing and an unsuccessful appeal. The husband argued that the Application in a Case was an inappropriate procedure for the wife to seek further parenting orders.

The court was required to determine whether the husband's application for summary dismissal of the wife's Application in a Case should be granted, and whether the Application in a Case was an appropriate procedure for the wife to seek further parenting orders. The court also had to consider whether the wife's initiating application had reasonable prospects of success and whether it was vexatious or an abuse of process.

The court dismissed the husband's application for summary dismissal, finding that the Application in a Case was not an appropriate procedure for the wife to seek further parenting orders. The court found that the wife had not complied with the procedural requirements for making an application for further parenting orders, and that the Application in a Case was not the appropriate mechanism for doing so. The court held that the wife's Application in a Case should be dismissed, and that the proceedings were to be stood over for a future mention. The court also dismissed the husband's application for summary dismissal of the wife's initiating application, finding that the initiating application had reasonable prospects of success and was not vexatious or an abuse of process.

Orders

Orders of the court

THE COURT ORDERS THAT:

1. The Application in a Case filed by the applicant wife on 9 August 2020 be dismissed.

2. The respondent husband be granted leave to file and serve a further Amended Initiating Application by no later than close of registry filing on 30 March 2022.

3. By no later than close of registry filing on 30 March 2022, the respondent husband file and serve a financial statement.

4. By no later than close of registry filing on 13 April 2022, the applicant wife and the second respondent:

4.1 file and serve a Response in accordance with the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

4.2 file and serve a financial statement.

5. By no later than close of registry filing on 23 May 2022, the parties collaboratively prepare a joint balance sheet ("the Balance Sheet") to be submitted to the Chambers of Justice Harper:

5.1 setting out all assets, liabilities and financial resources which the parties assert are relevant to the determination of this matter;

5.2 The balance sheet is:

5.2.1 to be divided into clearly identified sections, specifying Assets, Liabilities, Superannuation and Add-backs (if claimed);

5.2.2 give totals for each category, and subtotals in each category for each party;

5.2.3 in the event, there is dispute about totals and subtotals, each party is to include the total or subtotal for which they contend

5.2.4 to have footnotes which explain the differences between the parties in relation to any disputed items;

5.3 If a party contends any item should be included as an "add-back", the footnotes to the balance sheet must contain a brief description of the basis for the claimed add-back.

6. For the purposes of preparing the joint balance sheet:

6.1 By no later than close of registry filing on 22 April 2022, the respondent husband provide to the applicant wife a draft Joint Balance Sheet, using the form available on the Federal Circuit and Family Court of Australia website, setting out the asset pool for which he contends.

6.2 By no later than close of registry filing on 6 May 2022, the applicant wife return the Joint Balance Sheet to the respondent husband having inserted the applicant wife's contentions as to the asset pool, the applicant wife's asserted values and footnotes to explain any disputed items.

7. The proceedings be stood over to 9.30am on 26 May 2022 for mention.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

The trial of all issues was initially heard by Le Poer Trench J across 12 days in 2017. Judgment was delivered and final orders were made on 1 December 2017: Morse & Duarte (2017) 58 Fam LR 131 ("the initial judgment"). The ownership of the Suburb C property was an important issue in the initial judgment. The husband sought that there be a declaration that the wife has no "right, title or interest" in the Suburb C property. Alternatively, he sought an order that the wife and respondent hold the Suburb C property on trust for the husband and wife as tenants in common in equal shares. In the initial judgment, the trial judge found that there was no agreement between the wife and the husband for a division of the matrimonial assets, but the wife and Mr Tolman held the Suburb C property on trust for the wife and the husband in equal shares for the following reasons: 861. … the trust fits the legal criteria of that which is required to be called a resulting trust, arising from the fact that the mother used the joint assets of herself and father to acquire the [Suburb C] property and therefore she was not in a position to make a gift of any part of those funds to [Mr Tolman] until it was clear at law, or in equity, that she was able to do so. I am satisfied there had been no concluded or final agreement between the mother and the father about the division of their matrimonial property, which would have entitled the mother to see the assets, utilised by her to purchase the [Suburb C] property, as her exclusive assets. I am satisfied the father did not intend at any relevant time, or at all, to bestow on [Mr Tolman] any part of the matrimonial assets of the parties. 862.I am also satisfied that the prerequisites for the imposition of a constructive trust have been satisfied. I find that it would be unconscionable for [Mr Tolman] to be afforded the benefit of a half share in the [Suburb C] property which was purchased using the marital funds of the parties. I am satisfied that the father was not aware at the time of acquisition of the [Suburb C] property that [Mr Tolman] would be on title and had he been aware, he would not have consented to the wife using matrimonial funds to purchase the property. In summary the trial judge made orders for property adjustment pursuant to s 79 of the Family Law Act 1975 (Cth) ("the Act") as follows:(a)A declaration that the mother and Mr Tolman, as joint legal proprietors of the Suburb C property, hold it upon trust for the mother and father as tenants in common in equal shares;(b)The mother's payment to the father of $523,455 in satisfaction for his discharge of the caveat registered over the Suburb C property, pending which payment the mother and Mr Tolman are restrained from assigning or encumbering their interests in the property and from taking any action to remove the caveat;(c)Failing the mother's timely payment of $523,455 to the father, then the Suburb C property is to be sold and 49.8 per cent of the net sale proceeds paid to the father;

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.