Paston & Paston
[2023] FedCFamC1F 350
FEDERAL CIRCUIT AND
FAMILY COURT OF AUSTRALIA (DIVISION 1)Paston & Paston [2023] FedCFamC1F 350
File number(s): BRC 15578 of 2020 Judgment of: HOGAN J Date of judgment: 3 May 2023 Catchwords: FAMILY LAW – PRACTICE & PROCEDURE – Where Counsel for the respondent sought leave to amend the Response – Where leave is granted. Legislation: Family Law Act 1975 (Cth) Division: First Instance Number of paragraphs: 17 Date of hearing: 3 May 2023 Place: Brisbane Counsel for the Applicant: Mr Williams of King’s Counsel with Mr Eade of Counsel Solicitor for the Applicant: Hopgood Ganim Lawyers Counsel for the Respondent: Mr North of Senior Counsel Solicitor for the Respondent: Barry Nilsson Lawyers ORDERS
BRC 15578 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS PASTON
Applicant
AND: MR PASTON
Respondent
order made by:
HOGAN J
DATE OF ORDER:
3 MAY 2023
THE COURT ORDERS THAT:
1.The Respondent has leave to amend the Response to Final Orders filed 16 April 2021 in order to seek the relief adverted to in paragraphs 15 to 17 of the Outline of Case Document filed 28 April 2023.
2.The costs of and incidental to the oral application made today on behalf of the Respondent to amend the Response to Final Orders filed 16 April 2021 are 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 Paston & Paston has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
HOGAN J:
Mr North SC for the respondent seeks leave to amend the Response filed in the proceedings on 16 April 2021 in order to seek, if necessary, an order pursuant to s 90G(1B) of the Family Law Act 1975 (Cth) (“the Act”), being an order declaring that the Financial Agreement the subject of consideration in these proceedings is binding on the parties to it.
That amendment is opposed by Mr Williams KC, who appears on behalf of the applicant.
The circumstances in which the application for leave to amend the Response to positively seek the relief sought pursuant to s 90G(1B) occurs in the following circumstances.
The proceedings were commenced by Initiating Application filed on behalf of the applicant on 5 November 2020, by which she sought orders by way of various relief. Included within the relief sought is that particularised at paragraphs 1 to 3 of the Initiating Application – which may be summarised as being:
(a)a declaration that the Financial Agreement entered into between the parties and dated 17 May 2007 is non-binding or not binding upon them; and/or alternatively,
(b)that the Financial Agreement be set aside pursuant to the operation of s 90K and s 90KA of the Act on the basis that:
(i)the agreement is void, voidable or uncertain because:
(A)it is asserted to have been affected by common mistake as to the manner in which it was intended to operate; or, alternatively,
(B)the respondent acted with actual or constructive knowledge in circumstances where he knew that the applicant, to her detriment, acted under mistake or a misapprehension as to the manner by which the Agreement was, or was intended, to operate, which mistake or misapprehension was taken advantage of by him and through which he profited; or, alternatively,
(C)pursuant to s 90K(1)(e) of the Act, it is asserted that the respondent engaged in conduct that was, in all the circumstances, unconscionable; or, alternatively,
(D)pursuant to s 90K(1)(a) of the Act, there was alleged or asserted non-disclosure of a material matter; or, alternatively,
(c)a declaration that the Agreement is unenforceable or ineffective on the grounds that:
(i)the respondent is estopped from departing from the assumptions or understanding which it is asserted existed and by which the agreement was intended to operate, which are alleged to have been adopted by the parties as the conventional basis during their relationship; or, alternatively,
(ii)the Respondent is estopped from resiling from alleged representations made to the applicant said to have been relied upon by her as to the manner by which the Agreement was intended to, or did, operate.
The respondent's Response was filed on 16 April 2021. By it he sought, relevantly to this aspect of the proceedings between the parties, that an order be made dismissing the applicant's Initiating Application and that the Court make specified or particularised orders by way of enforcing the terms of the Financial Agreement. In addition, interim orders were sought requiring that the parties engage in a process of the exchange of pleadings by way of delivery of Points of Claim, Response and Reply documents.
This Court, as is well known, is not, formally, a court of pleadings – albeit, of course, that in the discharge of case management obligations, orders and directions relating to, and providing for, the exchange of such documents intended to have the parties identify the cases advanced by each and intended, where possible, to cause the issues between them to be narrowed (via the requirement to enter into and exchange pleadings) may be ordered.
Reference to the order made on 28 April 2021 – not long after the Response was filed – establishes that orders were, in fact, made for these parties to exchange pleadings. Further, the consideration (in this aspect of these proceedings) of the competing contentions between the parties was referenced in the order: namely, that the Points of Claim to be delivered and the pleadings to be exchanged relate to the issues raised for determination within and by paragraphs 1 to 3 (inclusive) of the Initiating Application. The order required the Points of Claim to specifically plead the material facts and contentions upon which the applicant relied in support of the issues raised in grounds 1 to 3 of the Initiating Application and for the respondent, within six weeks of receiving that document, to file and serve a Response responding to the Points of Claim and pleading the “properly particularised material facts in support of any matters of defence” upon which he was to rely “to resist the applicant's claim raised for determination”.
The April 2021 order also provided for the applicant to have the opportunity to respond formally by way of Reply, an opportunity that has been taken up in this proceeding.
The applicant duly filed a Points of Claim document, which was sealed on 9 June 2021. Reference to this document makes clear that, in articulating the bases of the claim advanced, the applicant:
(a)identified by reference to various legislative provisions those sections of the Act relied on as providing the power to make the orders sought – for example, in clause 31(d) (found at page 22 of 36) it was asserted that, because of matters previously pleaded, the applicant was not provided with independent legal advice about the effects of the Financial Agreement on her rights and about the advantages and/or disadvantages at the time the advice was given to her: it was asserted that, consequently, the Financial Agreement was not binding on the parties and particular reference was made to s 90G(1)(b) of the Act; and
(b)secondly, by way of example, it was pleaded that, if the Financial Agreement was binding, the Court would be persuaded that it was void, voidable or unenforceable within and for the purposes of sections of 90K(1)(b) and 90KA of the Act on the bases particularised in, as alternatives, clauses 32(c), 33(d), 39(b), 40 and 43(c) of the Points of Claim; and
(c)thirdly, relief sought was particularised via the applicant seeking that a declaration be made that the Agreement is not binding or, alternatively, that orders be made for it to be set aside (as particularised on page 35 of 36 of the Points of Claim).
The respondent filed a Response to the Points of Claim, that document being sealed on 20 August 2021. In the Response, the respondent identified the relief sought – by, way of a denial that the applicant is entitled the relief sought in the Point of Claim (see clause 48 on page 23 of 27 of the Response). Under the heading, “Answer to whole of claim”, the respondent specifically pleaded the contentions at clauses 50, 51, 52, before, at clause 53, asserting that, in the circumstances pleaded above, the Court should not exercise its discretion in granting the relief sought by the applicant; further, that the Agreement was pleaded as an absolute bar and estoppel to the claim by the applicant.
There is no specific reference in the Response document filed on the behalf of the respondent to any reliance by him on the terms of either s 90G(1A) or 90G(1B) of the Act.
Until leave was sought by Mr North SC on his behalf today, there was no specific relief sought by way of order seeking a declaration be made that the agreement signed by the parties is binding upon them – neither in the Response formally filed nor in the Response filed in responding to the Points of Claim.
The fact that such relief was anticipated as being sought by the respondent was adverted to, it seems accepted, for the first time in paragraphs 15 to 17 of the Outline of Case Document filed on the respondent’s behalf on 28 April 2023 – last Friday, noting that, in Queensland, Monday of this week (1 May 2023) was a public holiday. Despite the reference in those paragraphs of the Outline of Case document, the orders sought (comprising part of that document) remained as set out in the Response filed in April 2021: that is, reference to the Case Outline document shows that the orders sought in that document remained only that an order be made dismissing the Initiating Application and that orders be made by way of enforcement of the Financial Agreement.
It is against that background, then, that Mr Williams KC, on behalf of the applicant, opposed the respondent being afforded the opportunity to advance the case as particularised in paragraphs 15 to 17 of the Case Outline Document.
I take the submissions made by Mr Williams KC to be, in effect, that, given the history I have just outlined, the applicant would be prejudiced if the respondent was granted leave to advance a case seeking that the Court exercise the power accorded to it by s 90G(1B) of the Act to make an order declaring the Agreement binding. Of course, such order can only be made if the circumstances or preconditions particularised in s 90G(1A) are established; as Mr North SC made clear in his submissions, that relief is to be sought by the respondent as an alternative.
It is highly undesirable that any party to proceedings in this Court is given the absence of notice that I consider the applicant was given by the respondent of an intention to rely upon, and seek to advance a case resting upon, s 90G(1A) of the Act. That, though, is not the determinative matter, in my view. The circumstances here, it seems to me, require that I take into account and consider the prejudice to which Mr Williams KC has referred; that I balance, though, what I regard as the requirement, in order to ensure a just process, to afford to any party – here, the respondent – the opportunity to advance a case that may be open to that party as a matter of law; to determine and consider the impact on the Court’s processes of an order giving leave to amend the proceedings in circumstances where the opposition to such an order is advanced on the basis of asserted prejudice to the other party.
Balancing all of those factors and even taking into account the absence of what I regard as proper notice on the part of the respondent, I intend to accord to the respondent leave to amend the Response in order to seek the relief adverted to in paragraphs 15 to 17 of the Outline of Case Document, because in my view, such an order is required in order to do justice as between the parties.
I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Hogan. Associate:
Dated: 10 May 2023
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