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:

In these proceedings, the Respondent Wife, Ms Duarte (“the wife”), has submitted for filing an Application in…

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.

Continue reading Morse & Duarte (No 4)

Details

AGLC: Morse & Duarte (No 4) [2023] FedCFamC1F 278
Case: [2023] FedCFamC1F 278
Decision Date: 12 April 2023

CaseChat Overview and Summary

In Morse & Duarte (No 4), the Federal Circuit and Family Court of Australia was tasked with addressing the respondent wife's application for summary dismissal or permanent stay of the applicant husband's application for final property orders. This was the latest in a series of legal actions between the parties, with the wife having previously sought summary dismissal or permanent stay, which was dismissed, followed by an unsuccessful appeal. The wife alleged that the husband and their children had misled her about the death of the paternal grandfather. The court was required to determine whether there was any basis for the wife's application, as well as a separate application seeking a restraint to prevent the husband from funding his legal representation through unsecured loans.

The court examined the wife's arguments and found that there was no basis for her application for summary dismissal or permanent stay. The allegations of misleading the wife about the grandfather's death did not provide a valid reason to dismiss or permanently stay the husband's application for final property orders. Furthermore, the court found that the wife's application for a restraint on the husband's funding of his legal representation was not supported by any evidence or legal justification. The court held that there was no basis for the making of an injunction of the kind sought by the wife.

In light of the findings, the court dismissed the wife's application for summary dismissal or permanent stay and her application for a restraint on the husband's legal funding. The court also granted leave for the wife to file further applications seeking miscellaneous orders, but these were also dismissed. Costs were reserved for later determination. This decision reinforces the importance of providing valid legal grounds for applications and the need for evidence to support any claims made in family law proceedings.

Orders

Orders of the court

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.

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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

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

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