Pappas and Ebner - [2013] FamCA 458

FAMILY COURT OF AUSTRALIA

PAPPAS & EBNER

[2013] FamCA 458

FAMILY LAW – PRACTICE AND PROCEDURE – where husband sought orders pursuant to s79A – where wife sought summary dismissal of husband’s application – whether husband’s application is doomed to fail – where husband’s application is summarily dismissed.

Family Law Act 1975 (Cth) s 79A

Friar & Friar [2011] FamCAFC 71
Lindon v Commonwealth (No 2) (1996) 136 ALR 251

APPLICANT:

Ms Pappas

RESPONDENT:

Mr Ebner

FILE NUMBER:

SYC

4655

2008

DATE DELIVERED:

24 May 2013

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Stevenson J

HEARING DATE:

20 May 2013

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Ms Pappas appeared on her own behalf

SOLICITOR FOR THE RESPONDENT:

Mr Ebner appeared on his own behalf

Orders

That the husband’s Initiating Application filed on 29 January 2013 is dismissed.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 4655 of 2008

Ms Pappas

Applicant

And

Mr Ebner

Respondent

REASONS FOR JUDGMENT

the proceedings

On 25 October 2012 Ms Pappas and Mr Ebner consented to final orders and declarations for settlement of their matrimonial property. Inter alia, they consented to a declaration that the wife
be solely entitled to all other property, both real and personal in his [sic] ownership, possession or control including but not limited to:
(e) her interest in any shares.
By an Application filed on 29 January 2013 the husband sought the following orders:
1.        That the Court order and insert as Order 8A to the Orders of 25 October 2012 (Proceedings SYC4655 of 2008) THAT THE Wife not dispose of her interest in Property for a period of three years from 25 October 2012 without leave of the Court with the Court at liberty to hear submissions from the parties as to whether such sale is in the best interests of the children.
2.        That the Court order that existing Order 9 of the Orders of 25 October 2012 (Proceedings SYC4655 of 2008) be deleted and be replaced by the following words as Order 9 to the Orders:
“That in the event of any sale or disposition of the Property after the date of these Orders, then the Wife shall pay to the Husband an amount of $105,000 and the parties are to provide all necessary instructions and authorities to cause that $105,000 is to be paid to the Husband from the net proceeds of sale upon settlement of the Property. The amount of $105,000 shall not bear interest for a period of three years after 25 October 2012, thereafter at a rate of 4 percent per annum until such time as the amount is paid to the Husband.”
3.        That the Wife pay to the Husband his costs arising during 2012 under proceedings SYC4655 of 2008.
It would appear that the…

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 Pappas and Ebner

Details

AGLC: Pappas and Ebner [2013] FamCA 458
Case: [2013] FamCA 458
Decision Date

CaseChat Overview and Summary

In *Pappas & Ebner*, the Family Court of Australia considered an application by the husband, Mr Ebner, to vary consent orders made on 25 October 2012 pursuant to section 79A of the *Family Law Act 1975* (Cth). The wife, Ms Pappas, sought summary dismissal of the husband's application. The dispute centred on allegations by the husband that the wife had failed to disclose relevant information regarding a share portfolio and had wrongly attributed a nil value to her interest in a business.

The court was required to determine whether the husband's application under section 79A(1)(a) of the *Family Law Act*, alleging a miscarriage of justice due to suppression of evidence or failure to disclose relevant information, had a reasonable prospect of success. Specifically, the court had to assess whether the husband had demonstrated that the wife's alleged non-disclosure constituted a miscarriage of justice, given that the husband was aware of the existence of the share portfolio and the valuation of the business at the time the consent orders were made.

Justice Stevenson applied the principles for summary dismissal as outlined in *Lindon v Commonwealth* and *Friar & Friar*, which require the applicant for summary relief to demonstrate that the opponent's claim is clearly frivolous or vexatious, or has no reasonable likelihood of success. The court found that the husband had sufficient knowledge of the wife's share portfolio and the valuation of her business interests prior to the consent orders being made. Evidence, including the husband's own affidavits and annexed documents, indicated he was aware of the share portfolio and the H Firm indemnity, and had access to a report valuing the business. Therefore, the court concluded that the husband could not establish a miscarriage of justice for the purposes of section 79A(1)(a) based on the alleged non-disclosure.

Consequently, the court ordered the summary dismissal of the husband's application pursuant to section 79A and his related application for costs arising during 2012, finding that he lacked a reasonable cause of action and that his claim was clearly frivolous or vexatious.

Orders