Morse & Duarte (No 4)

[2023] FedCFamC1F 278

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Morse & Duarte (No 4) [2023] FedCFamC1F 278

File number(s):

SYC 737 of 2014

Judgment of:

HARPER J

Date of judgment:

12 April 2023

Catchwords:

FAMILY LAW – PRACTICE AND PROCEDURE – Respondent Wife seeks summary dismissal or permanent stay of husband’s application for final property orders –
Where wife has made a previous application for summary dismissal which was dismissed, followed by unsuccessful appeal – Where wife claims husband and children have lied to her about the death of the paternal grandfather – Where there was no basis for the application – Application for summary dismissal or permanent stay dismissed.

FAMILY LAW – PRACTICE AND PROCEDURE – Where wife sought a restraint to prevent husband from funding his legal representation through unsecured loans – Where no basis for the making of an injunction of the kind sought by the wife – Application dismissed.

Cases cited:

Duarte & Morse (2019) FLC 93-902; [2019] FamCAFC 93

Morse & Duarte (No 3) [2023] FedCFamC1F 35

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

Division:

Division 1 First Instance

Number of paragraphs:

13

Date of hearing:

12 April 2023

Place:

Sydney

The Applicant:

Litigant in person

Solicitor for the Respondent:

Lander & Rogers

ORDERS

SYC 737 of 2014

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MR MORSE

Applicant

AND:

MS DUARTE

Respondent

ORDER MADE BY:	HARPER J
DATE OF ORDER:	12 APRIL 2023

THE COURT ORDERS THAT:

1.Leave be granted, to the extent necessary, for the Respondent Wife (“wife”) to file in Court an Application in a Proceeding seeking summary dismissal or permanent stay of the Applicant Husband’s (husband’s) fifth Amended Initiating Application filed on 24 December 2019.

2.The wife’s application for summary dismissal or permanent stay be expedited and otherwise dismissed.

3.Leave be granted, to the extent necessary, for the wife to file in Court a further Application in a Proceeding seeking miscellaneous orders.

4.The wife’s application for miscellaneous orders be expedited and otherwise dismissed.

5.Costs stand reserved.

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 Duarte & Morse has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

EX TEMPORE REASONS FOR JUDGMENT

HARPER J:

1. In these proceedings, the Respondent Wife, Ms Duarte (“the wife”), has submitted for filing an Application in a Proceeding seeking expedition of the application and an order that the fifth Amended Initiating Application of the Applicant Husband, Mr Morse (“the husband”), be summarily dismissed or permanently stayed. 

2. These proceedings have a long history in the Court, which I set out in an earlier judgment, Morse & Duarte (No 2) [2022] FedCFamC1F 152, concerning the wife’s application for summary dismissal delivered on 17 March 2022, and it is unnecessary to repeat that history here.

3. When asked why the fresh application for summary dismissal or a permanent stay should be entertained, the wife argued that, on the basis of the two affidavits affirmed on 21 March 2023, there were new facts which provided a totally fresh basis for a summary dismissal or stay application.

4. I point out here that in Morse & Duarte (No 2), I was not persuaded that the wife demonstrated the application of the husband had no reasonable prospects of success. Part of the reason for reaching that conclusion was that these proceedings have been remitted by the Full Court after the wife’s partially successful appeal against the original property orders made by the Court in 2019. The decision of the Full Court in that regard is Duarte & Morse (2019) FLC 93-902.

5. I have also delivered earlier this year a judgment concerning the interest of the former Second Respondent to the proceedings, who at one point was the partner of the wife, concerning his interest in a property referred to in that judgment as the Suburb C property: Morse & Duarte (No 3) [2023] FedCFamC1F 35. Both remaining parties had assured me that in the event that question was determined, there was a high prospect of resolution of the proceedings at a conciliation conference. However, that has not happened, and two attempts at a conciliation conference have failed.

6. The wife’s basis for a further summary dismissal application was that she contends she has been lied to by the husband and her children about the death of the husband’s father and contends that the Court should infer from this deceit that there has been a windfall in favour of the husband which has been undisclosed, and further, this level of deceit constitutes such an egregious breach of trust that there will be no possibility of cooperative pre-trial processes, which will inevitably cause a denial of procedural fairness to the wife.

7. These matters, as I understood the argument, were said to lead to the conclusion that the husband had no reasonable prospect of success. 

8. In my view, none of these arguments have any merit. In my view, the basis for this application is fanciful, and the fact that it has been filed has led to the allocation unnecessarily of judicial time to deal with an application which, on its face, is patently specious. I note that the orders made on 20 March 2023 provided for the parties to exchange further requests for disclosure.  If that order had simply been complied with by the wife, she could have requested information concerning the estate of the husband’s father. In any event, the submission was made by the solicitor for the husband that disclosure of the husband’s father’s will had been made on 30 March 2023, and that, in summary, made clear that the entire estate had been left to the husband’s mother.

9. The wife sought to file a further Application in a Proceeding seeking some miscellaneous orders, only two of which were pressed, that is, a restraint on the husband funding his legal fees with any unsecured loan and an order seeking to vacate hearing dates set down in January 2024. In relation to the second order, the wife conceded that was predicated upon her application for stay or summary dismissal, which I have refused, and accordingly, I decline to make any order vacating the hearing dates.

10. In relation to the restraint sought against the husband funding any further legal fees by unsecured loan, the basis for this order was said to be supported by the affidavit evidence of the wife affirmed on 21 March 2023. In summary, her contention is that the husband clearly has no sufficient assets to secure any loan, and accordingly, his lawyers are taking money on an unsecured basis which cannot be backed by any assets of the husband. The wife contended that this appeared to be a breach of the lawyers’ duty and would ultimately undermine the capacity of the husband to support himself and the children of the parties, who currently reside in his sole care.

11. She argued that the husband continuing to borrow money would make a mockery of the Court and undermine its integrity. She also argued, as I understood it, that unless the restraint was ordered, the husband’s lawyers were vulnerable to an application in the Supreme Court of New South Wales. 

12. In my view, none of those matters justify the restraint sought. The arrangements that the husband makes in respect of paying his legal fees are a matter for him. There is well established jurisprudence in this Court about how paid and unpaid legal fees are to be treated on the ultimate balance sheet between the parties, and in the event the wife wishes ultimately to make submissions about borrowings by the husband in respect of legal fees, it will be well open for her to do so at final hearing.

13. I accordingly dismiss the wife’s application for miscellaneous orders.

I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Harper delivered on 12 April 2023.

Associate:

Dated:       18 April 2023