PARKE & PARKE
[2015] FamCAFC 202
•21 October 2015
FAMILY COURT OF AUSTRALIA
| PARKE & PARKE | [2015] FamCAFC 202 |
| FAMILY LAW – APPEAL – Application for expedition of hearing the appeal – Where the wife seeks to expedite the husband’s appeal against orders of the primary judge which dismissed his application to enforce a financial agreement and instead set aside that agreement – Where the husband has a terminal condition and if his appeal is successful, the matter would require a new trial – Where the husband does not oppose the application – Where the circumstances justify priority being given to the appeal – Hearing expedited. |
Family Law Act 1975 (Cth) ss 90G, 90K(1)(a), (b), (c) and (e), 94(2D)(j)
Family Law Rules 2004 (Cth) r 12.10A
| APPLICANT: | Ms Parke |
| RESPONDENT: | Mr Parke |
| FILE NUMBER: | BRC | 6354 | of | 2014 |
| APPEAL NUMBER: | NA | 52 | of | 2015 |
| DATE DELIVERED: | 21 October 2015 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | May J |
| HEARING DATE: | 21 October 2015 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 19 June 2015 |
| LOWER COURT MNC: | [2015] FCCA 1692 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Dr Brasch QC |
| SOLICITOR FOR THE APPLICANT: | Keating Lehn Solicitors |
| COUNSEL FOR THE RESPONDENT: | Mr Galloway |
| SOLICITOR FOR THE RESPONDENT: | Family Law Solutions |
Orders
The Application in an Appeal filed by the wife on 23 September 2015 to expedite the hearing of the husband’s Notice of Appeal filed 21 July 2015 be allowed.
The hearing of the appeal be listed in the Brisbane Full Court sittings commencing 1 February 2016, on a day to be fixed.
The costs of this Application be reserved to the Full Court of the Family Court of Australia.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Parke & Parke has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE |
Appeal Number: NA 52 of 2015
File Number: BRC 6354 of 2014
| Ms Parke |
Applicant
And
| Mr Parke |
Respondent
REASONS FOR JUDGMENT
On 23 September 2015 Ms Parke (“the wife”) filed an Application in an Appeal seeking to expedite the hearing of the appeal filed by Mr Parke (“the husband”). The husband filed the Notice of Appeal on 21 July 2015.
The appeal is from orders made on 19 June 2015. Judge Howard dismissed the husband’s application seeking to enforce a financial agreement between the parties, and instead set aside the agreement.
Due to the husband’s declining health, the wife seeks the hearing of the appeal be expedited to the earliest Full Court sittings available. The husband, represented by counsel, neither supports nor opposes the application.
Background and Reasons of the Primary Judge
The husband is currently 73 years of age. The wife is currently 67 years of age. The parties were in a relationship for approximately 37 years. They have one adult son together.
The husband was diagnosed with a terminal condition in 2012 and it is apparent that his health has recently deteriorated.
The primary judge concluded that the formal requirements of s 90G of the Family Law Act 1975 (Cth) (“the Act”) had been complied with and the agreement is binding upon the parties but found it should be set aside (at [43]).
Some reference to the reasons is useful in deciding the application. In summary, the primary judge concluded the following:
a)Pursuant to s 90K(1)(a), that the husband failed to make full and frank disclosure (at [88]), and further failed to disclose interests in a superannuation fund purportedly held by the parties (at [49], [89]). The primary judge rejected the husband’s submission that the parties only intended to deal with “some” of their assets (at [68]) and instead found they were obliged to provide full disclosure (at [70]) as that “…is what a reasonable person in the position of the parties would have “intended or assumed”.” (at [73] (footnotes omitted). Additionally and still within s 90K(1)(a), the husband was found to have forged the wife’s signature a number of times in connection with the superannuation accounts (at [94] – [107]), misled his solicitors regarding the superannuation fund establishment date (at [107]) and in some way dealt with the wife’s entitlements (at [92]). Despite these findings, the primary judge concluded that as the wife would have signed the financial agreement in any event (at [123]), the agreement could not be set aside under this sub-section.
b)Pursuant to s 90(K)(1)(b) and/or (e), the primary judge found that the wife was at “a special disadvantage” (at [132], [148]) in dealing with the husband at the time of the making of this financial agreement, by reason of the many years of physical, verbal, emotional and financial abuse (at [135] – [143]). The primary judge concluded that the husband “cunningly exploited the [wife]’s financial vulnerability and financial insecurity.” (at [145]), and therefore engaged in unconscionable conduct (at [147]).
c)The primary judge declined to make a finding of undue influence, as ultimately the wife did not plead this issue and the husband consequently made no response (at [149] – [164]).
d)Pursuant to s 90K(1)(b) and (c), the primary judge found that the agreement is uncertain and void, and impracticable to be carried out (at [188]), in particular because the son refused to accept the transfer of his mother’s interests in the properties pursuant to the financial agreement (at [184]).
e)The primary judge found the husband breached essential terms of the financial agreement, namely those relating to the wife’s entitlements from the superannuation funds (clauses 5 and 11(a) (at [195])), a payment of $25,000 (clause 6.1 (at [201])), weekly expense payments (clause 7.1 (at [196])) and domestic violence (clause 8 (at [198])).
It can be seen that should the appeal be allowed and a re-hearing ordered, it would be difficult to conduct the case without the presence of the husband for cross-examination.
Application
In her affidavit filed 23 September 2015, the wife records her concerns that the husband’s health is deteriorating and that the appeal may not be resolved prior to the husband’s death.
In the wife’s summary of argument, counsel for the wife correctly sets out the relevant law relating to applications to expedite a hearing. Pursuant to s 94(2D)(j) of the Act, a single judge of the appeal division may hear such applications. Reference is also made to the guiding principles concerning an application for expedition of a trial, contained in r 12.10A of the Family Law Rules 2004 (Cth). The criteria to which particular reference was made are as follows:
…
(2)The court may take into account:
(a)whether the applicant has acted reasonably and without delay in the conduct of the case;
(b)whether the application has been made without delay;
(c)any prejudice to the respondent; and
(d)whether there is a relevant circumstance in which the case should be given priority to the possible detriment of other cases.
…
(4)For paragraph (2)(d), a relevant circumstance includes:
(a)whether the age, physical or mental health of, or other circumstance (such as an imminent move interstate or overseas) affecting, a party or witness would affect the availability or competence of the party or witness;
(b)whether a party has been violent, harassing or intimidating to another party, a witness or any child the subject of, or affected by, the case;
(c)whether the applicant is suffering financial hardship that:
(i)is not caused by the applicant; and
(ii)cannot be rectified by an interim order;
…
(g)whether an expedited trial would avoid serious emotional or psychological trauma to a party or child who is the subject of, or affected by, the case.
Counsel for the wife prepared comprehensive submissions in relation to these criteria.
The wife has complied with all previous directions of the court, and filed her application without delay. The wife did not oppose the expediting the hearing of the husband’s initial application and his requests for an extension. The wife did not oppose the husband’s stay of the orders the subject of appeal, notwithstanding the prejudice this has caused her. In the wife’s affidavit she explains that the husband’s net worth is in the vicinity of $6 million, the husband’s estimate is $4.6 million. The wife has no assets or income and lives in rented premises. Until the appeal is resolved, and there be a further hearing either of the husband’s application or the wife’s application for property settlement, the wife is without any income or support. This factor is significant especially in light of the husband’s perilous health.
There is no doubt that the discretion to order an appeal be heard with expedition should be exercised in this case.
costs
It is appropriate in these circumstances that the costs of this application be reserved to be heard together with the hearing of the appeal by the Full Court.
I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of the Honourable Justice May delivered on 21 October 2015.
Associate:
Date: 21 October 2015
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