PATEL and NOORA

[2019] FCWA 260

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY LAW ACT 1975

LOCATION: PERTH

CITATION: PATEL and NOORA [2019] FCWA 260

CORAM: O'BRIEN J

HEARD: 5 NOVEMBER 2019

DELIVERED : 5 DECEMBER 2019

FILE NO/S: PTW 1901 of 2012

BETWEEN: MR PATEL

Applicant

AND

MS NOORA

Respondent

Catchwords:

PROPERTY – Application pursuant to s 79A to set aside consent orders.

SUMMARY DISMISSAL - Distinction between application to summarily dismiss based on primary application having no reasonable prospect of success, and application for orders to dismiss based on non-compliance with orders, rules or regulations - Where parts of the primary application are summarily dismissed, and the balance is stayed pending compliance with orders for disclosure – Turns on its own facts.

Legislation:

Family Law Act 1975 (Cth)

Category: Not Reportable

Representation:

Counsel:

Applicant	:	Mr Rodda
Respondent	:	Mr Wilson SC & Ms Hayes

Solicitors:

Applicant	:	Clairs Keeley
Respondent	:	Kim Wilson & Co

Case(s) referred to in decision(s):

Beck & Beck (2004) FLC 93-181

Bigg v Suzi (1998) FLC 92-799

Black & Kellner (1992) FLC 92-287

Blackwell & Scott [2017] FamCAFC 77

Bourke & Bourke (No 2) (1994) FLC 92-479

Cawthorn v Cawthorn (1998) FLC 92-805

Consolaro v Consolaro [2002] WASC 92

Ebner & Pappas (2014) FLC 93-619

Garden & Gavin (No 2) [2010] FamCAFC 125

Lindon v Commonwealth (No 2) (1996) 136 ALR 251

Linprint Pty Ltd v Hexham Textiles Pty Ltd (1991) 23 NSWLR 508

MCG v JM [2016] WASCA 75

Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589

Simpson & Hamlin (1984) FLC 91-576

SS & AH [2010] FamCAFC 13

Weir & Weir (1993) FLC 92-338

Zao & Lee [2019] FamCAFC 169

WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT – PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED

IT IS NOTED that publication of this judgment by this Court under the pseudonym Patel & Noora has been approved by the Family Court of Western Australia pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

1On 2 July 2013, final orders (“the primary orders”) were made by consent to alter the property interests of [Mr Patel] (“the husband”) and [Ms Noora] (“the wife”). Those orders in turn were amended by consent pursuant to section 79A(1A) of the Family Law Act 1975 (Cth) (“the Act”) by orders pronounced on 22 October 2013 (“the amended primary orders”).

2Broadly, the amended primary orders required the parties to do all things necessary to transfer the ownership of [the former matrimonial home] from joint names to a tenancy in common, with the wife to own 99 of 100 shares in it, and the husband to own the other share. Contemporaneously, the parties were to vary an existing home loan arrangement secured by mortgages registered against the property so as to reduce the amount owing to $400,000 by raising a new loan in their joint names, secured primarily against the husband’s interest in the property, and to the extent necessary against the wife’s interest. The husband was to meet all necessary payments on the new loan, and cause it to be discharged by 30 June 2018, whereupon he was to transfer his remaining share in the former matrimonial home to the wife. The balance of the amount owing on the original home loan prior to the refinancing was to be the responsibility of the wife, consistent with the requirement in the primary orders that she pay the husband $400,000.

3The primary orders made on 2 July 2013 were not otherwise amended on 22 October 2013. Provisions within them which provided for each party to retain certain property (including, relevantly, in the husband’s case a property in his sole name in [Suburb A], and his interest in his new home [in Suburb B] purchased jointly with his new partner) remained in force.

The present proceedings

4On 11 October 2018, the husband filed an application seeking to set aside the amended primary orders and certain of the primary orders. He proposed that, in substitution for those orders, still further orders be made requiring him to transfer his interest in the former matrimonial home to the wife within 60 days, and simultaneously transfer to her his interest in the Suburb A property. He sought orders that various loans (including the loan which he was, by the orders made on 22 October 2013, required to discharge) be refinanced into sole name of the wife.

5The husband filed an amended application on 9 November 2018 to clarify that his application was brought pursuant to s 79A(1)(b) of the Act, which permits the Court to vary or set aside an order for alteration of property interests if “in the circumstances that have arisen since the order was made it is impracticable for the order to be carried out or impracticable for a part of the order to be carried out”.

6The wife was ordered on 11 December 2018 to file a response, financial statement and affidavit. Certain other detailed orders for disclosure of documents were also made; as will appear, those orders assume some present importance.

7On 18 December 2018 the husband filed a further amended application by which he asserted that he relied in the alternative on s 79A(1)(c) of the Act, which permits the Court to vary or set aside an order for alteration of property interests if satisfied that “a person has defaulted in carrying out an obligation imposed on the person by the order and, in the circumstances that have arisen as a result of that default” it is just and equitable to do so.

8The wife filed a response on 21 February 2019, after orders were made by consent extending the time within which she was to do so. She sought the dismissal of the husband’s application and indemnity costs. She also sought on an interlocutory basis the suspension of the requirement pursuant to the order made on 11 December 2018 that she file a financial statement, and suspension of certain of the orders for disclosure of documents in so far as they imposed an obligation on her, while maintaining that the husband should comply with those orders.

9At a hearing on 15 March 2019 the wife indicated her intention to file an amended response. That document was filed on 28 March 2019. The wife sought the summary dismissal of the husband’s application, and compliance by the husband with specific orders for disclosure made on 11 December 2018.

10On 27 May 2019, procedural orders were made by consent vacating a Conciliation Conference which had been listed, permitting the husband to file a still further amended application within a specified timeframe, and providing for the wife to then respond. A further order was made, albeit not by consent, suspending the wife’s obligation to file a financial statement and comply with the order for disclosure referred to earlier in these reasons.

11The husband filed his still further amended application on 21 June 2019. By that application, in addition to his earlier reliance on ss (b) and (c) of s 79A(1), he now sought to rely on ss (d) which permits the Court to vary or set aside an order for alteration of property interests if satisfied that circumstances of an exceptional nature relating to the care, welfare and development of a child of the marriage have arisen since the making of the order and the child, or the applicant if he or she has caring responsibility for the child, would suffer hardship if the court did not do so. In addition to the relief earlier sought, he sought the sale of the former matrimonial home in the event that the wife could not refinance the debt secured by mortgage against it, as well as other liabilities for which he proposed she should be responsible, within 60 days of orders being made.

12The wife filed a further amended response on 29 July 2019, again seeking the dismissal of the husband’s application.

13On 19 August 2019, orders were made by consent permitting each party to file further affidavit material, and written submissions in relation to the wife’s application for summary dismissal. A further order was made by consent requiring the husband to “provide full and frank disclosure of any accounts he holds or has held with any betting agencies from 1 January 2017”, and the summary dismissal application was listed for hearing to 5 November 2019.

14The parties filed affidavits and written submissions, and counsel made oral submissions on 5 November 2019.

The Wife’s application

15The wife’s interlocutory application may be conveniently divided into two components.

16Firstly, the wife seeks summary dismissal pursuant to rule 10.12(d) of the Family Law Rules 2004 (Cth) (“the Rules”), on the basis that the husband’s application has no reasonable likelihood of success (“the merits based argument”).

17Secondly, the wife seeks an interlocutory order dismissing the husband’s further amended application based on rule 11.02(2)(a), which provides that if a party does not comply with the rules, regulations or a procedural order the Court “may dismiss all or part of the case”. She relies further on rule 13.14(b), which provides that if a party does not disclose a document as required under the Rules, the Court may stay or dismiss all or part of the party’s case (together, “the non-compliance argument”). The Full Court has recently described an interlocutory order of the nature sought by the wife as “a form of summary dismissal albeit not expressed in those terms”.[1]

[1] Zao & Lee [2019] FamCAFC 169, [27].

18In my view, different principles apply to the two components of the wife’s application. It is convenient to summarise those principles at this point.

The legal principles – the merits based argument

19Section s 45A(2) and 45A(3), which were inserted with effect from 1 September 2018 but are applicable to proceedings instituted before and after that date,[2] are in the following terms:

[2] Family Law Amendment (Family Violence and Other Measures Act 2018 (Cth), s 15.

45ASummary decrees

No reasonable prospect of successfully prosecuting proceedings

(2)The court may make a decree for one party against another in relation to the whole or any part of a proceedings if:

(a)the first party is defending the proceedings or that part of the proceedings; and

(b)the court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceedings or that part of the proceedings.

When there is no reasonable prospect of success

(3)For the purposes of this section, a defence or proceedings or part of proceedings need not be:

(a)hopeless; or

(b)bound to fail;

to have no reasonable prospect of success.

20Rule 10.12 of the Rules is in the following terms:

10.12Application for summary orders

A party may apply for summary orders after a response has been filed if the party claims, in relation to the application or response, that:

(a)the court has no jurisdiction;

(b)the other party has no legal capacity to apply for the orders sought;

(c)it is frivolous, vexatious or an abuse of process; or

(d)there is no reasonable likelihood of success.

21Rule 10.14 provides (while expressly not limiting the powers of the Court) that on an application under Rule 10.12 the Court may dismiss any part of the case, decide an issue, or make a final order on any issue.

22While the Rules have not been relevantly amended since the insertion of s 45A, it was not suggested by either party that the long-standing principles applicable to an application brought pursuant to Rule 10.12(d) are affected by the terms of s 45A(3).

23Those principles, as outlined in Lindon v Commonwealth of Australia (No 2),[3] and referred to in Bigg & Suzi,[4] may be summarised as follows:

1.It is a serious matter to deprive a person of access to the Court for the determination at trial of their claim. Accordingly, the power to summarily dismiss an application is “rarely and sparingly provided”;[5]

2.The party seeking summary dismissal must show that it is clear on the face of the other party’s documents that he or she “lacks a reasonable cause of action or is advancing a claim that is clearly frivolous or vexatious”;[6]

3.A perception by the Court, at that preliminary stage, that the substantive application is unlikely to succeed, or that the case is weak, is not sufficient to justify summary dismissal;[7]

4.If there is a serious legal question to be determined it should ordinarily be determined at trial, as the proof of facts may assist the Court to understand and apply the law that is invoked;;[8]

5.If the substantive claim is inadequately pleaded, but “it appears that [the claimant] may have a reasonable cause of action” which is not yet in proper form, the court will ordinarily allow that party to “reframe” the pleading;[9] and

6.“The guiding principle is… doing what is just. If it is clear that proceedings within the concept of the pleading under scrutiny are doomed to fail, the court should dismiss the action to protect the defendant from being further troubled, to save the plaintiff from further costs and disappointment and to relieve the court of the burden of further wasted time which could be devoted to the determination of claims which have legal merit”.[10]

[3] (1996) 136 ALR 251.

[4] (1998) FLC 92-799.

[5] Lindon v Commonwealth of Australia (No 2) (1996) 136 ALR 251, 256.

[6] Ibid (omitting citations).

[7] Ibid.

[8] Ibid.

[9] Ibid.

[10] Ibid.

24The reference above to a clear finding that the relevant proceedings are “doomed to fail” must be read in context of the subsequent legislative provision in s45A(3) which expressly provides that the substantive application in question need not be “hopeless” or “bound to fail” to have no reasonable prospect of success for the purposes of the court making a decree pursuant to either s 45A(1) or s45A(2).

25Nevertheless in my view, the principle that a perception by the Court, at that preliminary stage, that the substantive application is unlikely to succeed, or that the case is weak, is not sufficient to justify summary dismissal remains apposite, and binding on me.

26As is clear from the reference to the need for the party seeking summary dismissal to demonstrate a lack of merit in the application “on the face of the other party’s documents”,[11] an application for summary dismissal based on the proposition that an application has no reasonable likelihood of success can only succeed if the assessment of that likelihood is based exclusively on the evidence of the respondent to the application for summary dismissal.[12]

[11] Ibid.

[12] Beck & Beck (2004) FLC 93-181.

27The making of an order summarily dismissing an application pursuant to rule 10.12(d) involves a determination of the merits of the substantive application, giving rise to a res judicata defence to any subsequent application brought on the same grounds.

The legal principles – the non-compliance argument

28Rule 11.02(2)(a) is in the following terms:

11.02Failure to comply with a legislative provision or order

(2)If a party does not comply with these Rules, the Regulations or a procedural order, the court may:

(a)dismiss all or part of the case

29Similarly, rule 13.14(b) is in the following terms:

13.14Consequence of non‑disclosure

If a party does not disclose a document as required under these Rules:

… (b) the court may stay or dismiss all or part of the party’s case.

30The proper application of the rules, and the relevant exercise of discretion, fall to be considered in the context of the main purpose of the rules, which is “to ensure that each case is resolved in a just and timely manner at a cost to the parties and the court that is reasonable in the circumstances of the case”.[13] In the present case, the clear obligation of the parties to give full and frank disclosure, and the potential consequences of a failure to do so, are also relevant.[14]

[13] Family Law Rules 2004 (Cth), r 1.04.

[14] Black & Kellner (1992) FLC 92-287; Weir & Weir (1993) FLC 92-338.

31An application for an interlocutory order dismissing all or part of a case pursuant to either rule 11.02(2)(a) or rule 13.14(b), while described by the Full Court as a “form of summary dismissal”,[15] is readily distinguished from a merits based application founded in rule 10.12(d).

[15] Zao & Lee [2019] FamCAFC 169, [27].

32For the reasons already set out, a merits based summary dismissal application must be considered by reference only to the evidence of the respondent to that application.

33In my view, no such limitation applies to the proper consideration of a non-compliance application founded in either rule 11.02 or rule 13.14. That must be so, as the non-compliance complained of will not always be self-evident from the court file, and is unlikely (particularly in cases of alleged non-disclosure) to be brought to the attention of the Court other than by evidence from the applicant.

34In considering such an application, the Court must first consider whether the alleged non-compliance has been established. The onus in that regard must fall on the applicant for the interlocutory order, and the evidence of both parties in relation to that issue must be considered. Where facts are disputed and there is no opportunity for evidence to be tested by cross-examination, the circumspection with which findings must be approached is well-established, and remains “no matter how firmly a judge’s intuition may suggest that the finding will be borne out after a full testing of the evidence”.[16]

[16] SS & AH [2010] FamCAFC 13, [88] – while the Full Court was in that case considering an appeal against interim parenting orders, the relevant principles are the same.

35It is only after the relevant non-compliance is established that the question of the merits or otherwise of the defaulting party’s substantive application might fall to be considered in the exercise of discretion. The exercise of a discretion to dismiss must self-evidently be informed by a consideration of the prejudice to the defaulting party; the dismissal of a meritorious substantive application might be thought to occasion greater prejudice than the dismissal of an unmeritorious application.

36That such prejudice would actually be occasioned, however, is less certain than might first appear. That is so, as a dismissal based on non‑compliance does not involve a dismissal of the substantive case on its merits. The insurmountable obstacles to a further application grounded on the same facts being brought in circumstances where the initial application was determined on its merits, by the making of consent orders, or by judgment in default of appearance on the basis of the available evidence do not necessarily arise.[17]

[17] Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589; Consolaro v Consolaro [2002] WASC 92; Linprint Pty Ltd v Hexham Textiles Pty Ltd (1991) 23 NSWLR 508.

37Similarly, there is no relevant time limit for the commencement of proceedings pursuant to s 79A. Indeed, the Court of Appeal has (albeit in a different context, and in relation to section 205ZH of the Family Court Act 1997 (WA), which is in virtually identical terms to s 79A) observed that no provision of the legislation “limits the occasions upon which application may be made pursuant to that section”, and that “application may be made pursuant to the section on more than one occasion if and when differing circumstances arise which might enliven the jurisdiction conferred upon the relevant court by the section”.[18] The Full Court has confirmed that proceedings under s 79A “at least in so far as they seek to set aside existing property orders are interlocutory in nature”.[19]

[18] MCG v JM [2016] WASCA 75, [6].

[19] Ebner & Pappas (2014) FLC 93-619.

38While the Full Court has stated that, given the other potential consequences to a defaulting party of non-disclosure, “dismissal of proceedings is therefore a last resort”,[20] that observation was made in the context of consideration of summary dismissal of a substantive application for alteration of property interests pursuant to s 79, to which the observations above could not apply.

[20] Zao & Lee [2019] FamCAFC 169, [42].

39That said, in considering an application for an order pursuant to either rule 11.02(2)(a) or rule 13.14(b), the Court must, in my view, consider the alternatives short of dismissal set out in those rules.

The merits based application for summary dismissal

40This aspect of the wife’s application must be considered by reference to each of the components of the husband’s substantive application. It is open to me to summarily dismiss one or more of those components, as distinguished from summarily dismissing the substantive application in its totality.[21]

[21] Family Law Rules 2004 (Cth), r 10.14.

41As already noted, this aspect of the application must be considered by reference to the husband’s evidence alone.

42I have accordingly had regard to the following affidavits only:

(a)the husband’s affidavit filed on 11 October 2018 (“first affidavit”);

(b)the husband’s financial statement filed the same day;

(c)the husband’s affidavit filed on 21 June 2019 (“second affidavit”);

(d)the husband’s affidavit filed on 9 September 2019 (“third affidavit”); and

(e)the husband’s affidavit filed on 2 October 2019 (“fourth affidavit”).

The first component of the husband’s substantive application – section 79A(1)(b)

43The husband’s first affidavit set out in some detail historical matters which occurred prior to the making of the amended primary orders on 22 October 2013. It also included evidence as to what the husband would regard as improvements in the financial circumstances of the wife since both separation and the making of the amended primary orders; that evidence is largely irrelevant to the required present consideration as to whether his application based on s 79A(1)(b) is without reasonable prospects of success. That is so, as if the husband’s evidence taken at its highest would prima facie have a reasonable prospect of satisfying the Court that the criterion described in s 79A(1)(b) is established, thereby engaging the discretion to make an order varying or setting aside the amended primary orders, no more is required unless it is very clear that there is no reasonable prospect of the discretion being exercised in his favour.

44More relevantly, the husband sets out evidence as to his current monthly income and expenditure. He then says, in respect of his obligation pursuant to the amended primary orders to refinance so as to release the former matrimonial home as security for the various loans:

“I have attempted to refinance the loans that I currently have secured against the [former matrimonial home] with both [Bank A] as well as through a Mortgage Broker. I have been advised that there is no equity in the [Suburb A] property and there is insufficient equity with my share of [the husband’s new home]. I also made enquires [sic] with [Bank B]. They also indicated that it was unlikely that they would assist me refinance [sic] the security of these loans due to there being insufficient equity in my interest in [the husband’s new home] and [the Suburb A property]”.

45Annexed to the husband’s first affidavit were a series of short emails between the husband and individuals at the Bank A and Bank B. The emails did not descend into any level of detail, and the most recent was sent in September 2017.

46The husband said that he also approached the finance broker with a view to complying with his obligations under the amended primary orders. Again, an email from the broker indicating her inability to assist was annexed to his affidavit.

47The husband said further that he had attempted to realise his interest in a property in [Country A], of which his uncle is a co-owner, but his uncle refused. On the husband’s evidence, his interest in that property is worth approximately $90,000.

48He asserted that his attempts to refinance with Bank A and the mortgage broker “demonstrate that the current orders are impractical.”

49In his second affidavit, the husband summarised various costs met by him by way of child support and servicing of loan obligations in 2017 and 2018. He said further that in July 2018 [Child A], who lived primarily with the wife, expressed a desire to live with him. Relevantly for present purposes he went on to say that he and his present wife “discussed the situation and realised we needed to move quickly to extend [their] home.” In August 2018, they signed a contract for renovations to add an extra bedroom to the home, extend an existing bedroom, add an ensuite for the children’s bedroom, and add a walk-in robe to the master bedroom.

50The husband goes on to say that the cost of the renovations was approximately $130,000. That cost was met by the application of $40,000 from the sale of “some of” his [shares], a payment of $55,000 by his current wife from a voluntary separation payment received from her employer in 2016, $35,000 from what were described as “joint earnings” of he and his new wife, with any balance met from his credit card.

51The husband then gives further detailed evidence of expenses met by him from 2010 to the date of swearing of the affidavit.

52He confirms further that, at the time he acquired his new home, the acquisition was funded by borrowings and by the application of his inheritance following the death of his mother. Potentially relevantly, he says his new wife was not in a position to contribute towards a deposit in purchasing the property.

53He otherwise gives evidence regarding the circumstances of the separation, the negotiations leading to the consent orders, and his understanding of the wife’s financial circumstances which are irrelevant to the matter presently requiring determination.

54In his third affidavit, the husband confirms various expenses met towards the renovation of his new home. He confirms that his new wife did not contribute to the purchase price of the new home, and does not contribute to the loan repayments on it.

55He confirms further that he has not made any loan applications “in [his] own name, jointly with any other person of [sic] in the name of any entity over which [he has] control” since prior to the making of the amended primary orders. The broad enquiries as to finance outlined in his first affidavit fall to be considered in the context of that admission, which is noteworthy given his assertion that his obligation to refinance pursuant to the amended primary orders is impracticable to be carried out.

56He says further that his “annual income net of tax is approximately $417,800”. That statement is made by way of explanation for what he would assert to be the reasonableness of expenses incurred by him in gambling since the amended primary orders were made. In that regard, he says that the “net amount [he] did not recoup from winnings” (which I interpreted to mean the net amount he lost) in the period 1 March 2018 to 20 November 2018 was $43,207. In addition, he admits to making cash bets of approximately $5,900 at casinos in [State A] and [State B] in that period.

57The husband’s financial statement sworn on 11 October 2018 is also relevant. In summary, he deposes to an annual gross income of $648,180, ownership of property to a total value of just over $1.498 million, superannuation to the value of just over $454,000, and liabilities which he estimates at just over $1.752 million. He additionally describes his 50 per cent interest in a property in Country A referred to earlier in these reasons as a financial resource worth $90,000.

58The husband’s fourth affidavit contains nothing of relevance to this aspect of his application.

59There are obvious weaknesses in the husband’s case advanced in reliance on s 79A(1)(b).

60Firstly, the amended primary orders require the husband to “do all acts and things and sign all documents necessary to cause the New Home Loan to be refinanced into his sole name using alternative means, being other than the [former matrimonial home] as security” (sic). He has made no formal application for a loan, and has done little more than make preliminary, and arguably superficial, enquiries as to his prospects of obtaining such a loan.

61At the hearing before me, the husband’s counsel explained his client’s inaction by saying that a failed loan application would negatively affect the husband’s credit rating, and that accordingly he had chosen not to make such an application in circumstances where he was convinced it would be unsuccessful. There are obvious difficulties in an argument that an order has been established by self-fulfilling prophecy to be impracticable to be carried out.

62Secondly, on the husband’s own evidence, he has wasted funds which could have been applied either to reduction of the debt that he was required to refinance, or for that matter in other ways which would have enhanced his capacity to secure the necessary borrowings.

63Similarly, in full knowledge of his obligations under the amended primary orders, the husband has chosen to expend significant funds in the renovation of his new home.

64The husband will no doubt face an argument that he cannot rely on impracticability where that impracticability arises from circumstances of his own making.[22] Similarly, the choices he has made as to the application of his very substantial income, both in the matters already referred to above and for that matter in his payment of the whole of the loan repayments on his new home without any contribution by his wife as co-owner, will no doubt be the subject of close scrutiny at trial.

[22] Cawthorn & Cawthorn (1998) FLC 92-805.

65That said, and albeit with some reluctance, I conclude that the weaknesses identified are not sufficient to justify a merits based summary dismissal of the husband’s application to the extent it relies on s 79A(1)(b).

The second component of the husband’s substantive application – section 79A(1)(c)

66In his submissions filed on 31 October 2019, counsel for the husband identifies the husband’s evidence in support of this component of his application. In short, he identifies the same evidence upon which he relies in support of that component of his application which is based on s 79A(1)(b).

67The husband’s application, and his evidence, do not draw the necessary distinction between the primary order becoming impracticable to be carried out, and a default by a party in carrying out an obligation imposed by the primary order.

68A party who has not met his obligations pursuant to a primary order may seek the setting aside or variation of the primary order pursuant to s 79A(1)(b) on demonstrating that he was unable to meet those obligations, because they were impracticable to be carried out.

69In contrast, the central purpose of s 79A(1)(c) is “[e]nsuring that justice and equity is achieved in the context of default of an order having occurred”.[23] The applicant bears the onus to satisfy the Court not only that the default has occurred, but that “in the circumstances that have arisen as a result of that default” it is just and equitable to vary the order, or set aside and make another order in substitution.[24]

[23] Blackwell & Scott [2017] FamCAFC 77, [47].

[24] Family Law Act 1975 (WA), s 79A(1)(c).

70There is a distinction between a consideration of justice and equity “in the circumstances that have arisen as a result of [the] default” (emphasis added) and the consideration under s 79A(1)(b) as to impracticability “in the circumstances that have arisen since the order was made”.[25] The former invites specific reference to the actions of the defaulting party and their consequences; the latter primarily contemplates circumstances which have arisen through no fault of either party.

[25] Blackwell & Scott [2017] FamCAFC 77.

71While the legislation does not expressly state that an application reliant on s 79A(1)(c) may only be brought by the non-defaulting party, and there may be circumstances in which a defaulting party might properly rely on that subsection (particularly, for example, where a variation to the primary order to accommodate delayed compliance is sought), nevertheless as counsel for the wife observes, it is well-established that a Court should not permit a party to ‘profit by [his] own wrongdoing’.

72The husband cannot succeed in an application based on s 79A(1)(c) unless he establishes the facts required to succeed in his application based on s 79A(1)(b). He would, otherwise, be permitted to profit by his own default.

73There is, accordingly, no utility in the husband being permitted to continue with his application based on s 79A(1)(c), it having no reasonable prospect of success independent of his application based on impracticability.

74The husband’s application insofar as it seeks relief pursuant to s 79A(1)(c) will be dismissed.

The third component of the husband’s substantive application – section 79A(1)(d)

75Three elements must be satisfied before an order can be made pursuant to s 79A(1)(d).

76First, circumstances of an exceptional nature relating to the care, welfare and development of a child must have arisen since the making of the primary order. A change of circumstances whereby a child who lived with one parent at the time of the primary order moves to live with the other will not, of itself, be exceptional. That said, the determination of whether particular circumstances are “exceptional” is very much a question of fact and degree.[26]

[26] Simpson & Hamlin (1984) FLC 91-576.

77Secondly, it must be demonstrated in those circumstances that the applicant (not the child) will suffer hardship if the court does not vary the primary order or set it aside and make another order in substitution.

78Thirdly, those conditions being satisfied, the exercise of discretion remains.[27] In that regard, “[t]he Court must consider in the exercise of its discretion whether that hardship is of such a serious nature and results in such inequity that it can only be rectified by the extreme step of setting aside or varying an existing order of the Court”.[28]

[27] Garden & Gavin (No 2) [2010] FamCAFC 125.

[28] Simpson & Hamlin (1984) FLC 91-576, 79,659.

79In support of the third component of his substantive application, the husband relies on parts of his affidavit filed on 21 June 2019. It may be inferred that he also relies on his fourth affidavit, though no specific reference was made to it in submissions.

80He says that at the time the amended primary orders were made the children of the marriage ([Child B], born [in] 1999 and now aged 20 and Child A, born [in] 2002 and now aged 17) lived with the wife, and that they both now live with him.

81He goes on to detail what he would assert to be a deterioration in the relationship between each of the children and the wife, and steps taken by him in his own support of them.

82On the husband’s evidence, Child B lived with the wife until [early] 2017, when he went to State A to commence his university studies. By that time, Child B was only a few months short of turning 18. The husband goes on to say that he and the wife shared the costs of Child B attending his residential college in State A “until the end of term 1, 2018”, before he ceased making his contribution in May 2018 and informed the wife accordingly. He otherwise says that he met his child-support obligations, and “continued to give [Child B] a living allowance throughout 2017 and 2018 to top up his casual work and funds from his maternal grandmother.”

83Child B returned to live in Perth in November 2018. Initially, on the husband’s case, Child B lived with him for 50 per cent of the time until February 2019. Thereafter, Child B began living with him on a full-time basis. He says that he meets “100% of [Child B]’s living expenses, such as food/travel/clothing et cetera” and that “[Child B] supplements his personal spending money with income from casual [sales assistant] work.”

84Child B is an adult. He did not return to Perth and begin living with the husband, even part-time, until he was 19 years old. There is no evidence (nor any suggestion by the husband) that Child B will suffer hardship if the amended primary orders are not varied or set aside with another order being made in substitution. The husband cannot properly be said to have “caring responsibility” for Child B when Child B is an adult, nor can any change in Child B’s circumstances be sensibly construed to be either “of an exceptional nature” or for that matter to relate to his “care, welfare and development”.

85The component of the husband’s primary application which is based on s 79A(1)(d) and which relies on circumstances relating to Child B has no reasonable prospect of success, and should be dismissed.

86The component of his case which relies on circumstances relating to Child A is distinguishable. Child A is still a child, and lives with the husband in circumstances which mean that he has caring responsibility for her in the relevant sense.

87On the husband’s evidence, Child A began spending weekends with him in September 2018, progressing to five nights per week in February 2019, six nights per week in March 2019, and full-time since May 2019. He describes in some detail what he perceives to be tensions between Child A, her mother, and her stepfather. He says that he is meeting all of her expenses, albeit the wife has been assessed to pay child support in respect of which she has lodged an objection.

88While the evidence does not permit a prima facie finding that the changed circumstances relating to Child A’s care, welfare and development are of the required “exceptional nature”, neither does it permit a finding that they are not. Given the determination of that issue is very much a question of fact and degree, it is properly a matter for trial.

89While prima facie the case is weak, no confident finding can be made that the component of the husband’s primary application which is based on s 79A(1)(d) and which relies on circumstances relating to Child A has no reasonable prospect of success.

The fourth component of the husband’s substantive application – section 79A(1A)

90This aspect of the husband’s application may be dealt with readily.

91The husband seeks orders whereby the amended primary orders would, in the words of his most recent amended application “be discharged and replaced” with orders in terms then set out. Notwithstanding the choice of expression, it is clear that, in the terms used in the legislation, the husband seeks that the amended primary orders be set aside, and that another order under s 79 be made in substitution for them.

92The husband then argues that, by the terms of her further amended response filed on 25 July 2019, the wife has indicated her consent to the amended primary orders being set aside, while disputing the orders that should be made in substitution for them. He cites authority supporting the proposition that s 79A(1A) is engaged by a consent of that nature.[29]

[29] Bourke & Bourke (No 2) (1994) FLC 92-479.

93 The husband’s argument is misconceived. The wife’s further amended response does no more than confirm her consent to the amended primary orders being varied to extend the time for compliance with them.

94To the extent that the husband’s substantive application purports to seek relief in reliance on s 79A(1A), it has no reasonable prospects of success and should be dismissed.

Conclusion on the “merits based” application for summary dismissal

95For those reasons, and noting that s 45A permits a decree “in relation to the whole or any part of proceedings”, and that rule 10.14 permits the dismissal of “any part of the case”, I conclude that the husband’s primary application should be summarily dismissed as having no reasonable prospects of success:

(a)insofar as it seeks relief pursuant to s 79A(1)(c);

(b)insofar as it seeks relief pursuant to s 79A(1)(d) by reference to circumstances which relate to the adult child of the marriage, Child B; and

(c)insofar as it purports to seek relief in reliance on section 79A(1A).

96I decline to summarily dismiss as having no reasonable prospect of success the husband’s primary application:

(a)insofar as it seeks relief pursuant to s 79A(1)(b); and

(b)insofar as it seeks relief pursuant to s 79A(1)(d) by reference to circumstances which relate to Child A.

97The question then remains as to whether those components of the husband’s primary application should be the subject of summary orders pursuant to rule 11.02(2) or rule 13.14(b).

The non-compliance argument

98The wife’s argument is based on what she asserts to be the husband’s failure to comply with his duty of disclosure. That argument in turn has two components.

99Firstly, the wife argues that the husband has failed to comply with orders for specific disclosure made on 11 December 2018 and 19 August 2019.

100Secondly, the wife argues that the husband has failed to meet his positive obligation, not limited to mere compliance with specific orders, to make full and frank disclosure not only of his current financial circumstances but of documents relevant to the matters in issue in his application, most particularly insofar as it seeks relief pursuant to s 79A(1)(b).

101Each party has a duty to the Court and to the other party to give full and frank disclosure of all information relevant to the case in a timely manner.[30] A party to a financial case must give full and frank disclosure of that party’s financial circumstances; by definition, the proceedings commenced by the husband’s application are a financial case.[31] In addition, the duty of disclosure applies to each document that is or has been in the possession, or under control, of the relevant party, and is relevant to an issue in the case.[32]

[30] Family Law Rules 2004 (Cth), r 13.01(1).

[31] Ibid, r 13.04; Dictionary.

[32] Ibid, r 13.07.

102In relation to the second component of the wife’s argument, there is a live factual dispute between the parties.

103In relation to the first component, however, in certain respects at least there is no such dispute.

104The order made by consent on 19 August 2019 required the husband to “provide full and frank disclosure of any accounts he holds or has held with any betting agencies from 1 January 2017” within 28 days.

105In his affidavit sworn on 9 September 2019, the husband admits to having accounts with [Betting Company A], [Betting Company B], [Betting Company C] and [Betting Company D]. He states that the majority of his online bets have been with Betting Company A,

106He exhibits to that affidavit a copy of statements from Betting Company A for the period 1 March 2018 to 30 November 2018. No explanation is offered as to why no earlier statements are produced, given the specific terms of the orders made on 19 August 2019. On its face, the exhibited statement shows that, as at 1 March 2018, the Betting Company A account had an “opening account balance”, albeit in a very modest amount; it is clear, therefore, that there were earlier transactions in the period covered by the order.

107No explanation is offered as to why no Betting Company A statement later than 30 November 2018 is produced, in circumstances where again the statement on its face shows a closing account balance at 30 November 2018 of $35,063. I note further that the document disclosed reveals that (notwithstanding the period which it covers) the statement was generated on 6 September 2019. I note further that the husband deposes to having “stopped all [his] online betting activities since mid‑July 2019”, and that he has not used “some” of the accounts (unspecified) since late 2018.

108The exhibited Betting Company D statement shows a selected date range of 1 March 2018 to 7 September 2019. While the amounts disclosed are modest, again no explanation is offered for the failure to produce documents encompassing the whole of the period contemplated by the order.

109The exhibited Betting Company B statement shows withdrawals and deposits for the period 3 February 2018 to 8 September 2019, albeit without any running balances. Again no explanation is proffered for the fact that the statement does not cover the whole of the period contemplated by the order.

110The document exhibited in relation to the husband’s Betting Company C account was generated on 9 September 2019 and purports to show all deposits and withdrawals on that account for the period 19 October 2017 to 15 September 2018. It is not entirely clear whether the document may be taken to confirm that there were no transactions after that date. Again, there is no running balance, and no explanation offered as to why the statement does not cover the whole of the period contemplated by the order.

111The husband’s affidavit responded to that sworn by the wife on 14 August 2019. At the time of swearing that affidavit, the wife did not have access to any statements from any betting account operated by the husband, as they had not been disclosed. Rather, by reference to statements disclosed in relation to the husband’s credit cards, the wife and her solicitors had compiled a schedule of the payments made from those cards to the betting accounts in question over the period 15 March 2018 to 20 November 2018. Those deposits totalled $140,670.

112For reasons best known to himself, the husband limited his response in his affidavit to addressing that specific time period only, stating that he had not lost the entire sum deposited but calculated that the net amount that he did not “recoup from winnings” totalled $43,207.

113That affidavit was sworn after the husband had consented to the orders made on 19 August 2019.

114I comfortably conclude that the husband has not complied with those orders.

115The earlier orders for specific disclosure, made on 11 December 2018, required the husband to make disclosure of bank statements and credit card statements for the period since 1 January 2013. In her affidavit sworn on 25 July 2019, the wife said that the husband had failed to disclose bank statements for the period 26 June 2015 to 27 September 2018, and for the period after 27 March 2019. She said further that credit card statements prior to 15 June 2015, and after 16 December 2018, had not been disclosed.

116In his affidavit sworn in response on 9 September 2019, the husband says that he had disclosed by that time bank statements for the period 27 September 2013 to 27 March 2019, and had requested from his bank copies of statements for the earlier relevant period. He said that he was “currently updating” his disclosure to include statements from 29 March 2019 onwards.

117In relation to credit card statements, he said that he had had disclosed copies of “some” statements for his Bank A Visa card and that his solicitors were “currently investigating” what documents were missing from the period prior to 15 June 2015. He otherwise said that he was “currently updating” his disclosure to include later statements.

118He then responded with varying degrees of detail to the wife’s assertions that he had not complied with the requirement to disclose his tax returns, and financial statements for the family trust and self-managed superannuation fund.

119On the husband’s own evidence, he has not fully complied with the orders for disclosure made on 11 December 2018.

120Given my findings as to the husband’s non-compliance with those specific orders, it is unnecessary for present purposes to consider the wife’s further complaints as to what she would allege to be the husband’s broader failures to comply with his duty of disclosure.

121The facts necessary to enliven the discretion contemplated in rules 11.02(2) and 13.14(b) having been established, it remains to consider what orders should be made, if any, in the exercise of that discretion.

122The options available to the Court pursuant to rule 11.02(2) include but are not limited to the dismissal of all or part of the case, the determination of the case as if undefended, any of the orders mentioned in rule 11.01, and an order prohibiting the non-complying party from taking a further step in the case until the occurrence of a specified event.

123Similarly, rule 13.14(b) provides that the court may “stay or dismiss all or part of the party’s case”.

124The wife urges the dismissal of the husband’s application. That said, her counsel appropriately acknowledged that less punitive options are properly open.

125While I have some sympathy for the wife’s position, I must bear in mind the recent observation of the Full Court that dismissal of proceedings based on a failure to give disclosure is “a last resort”.[33]

[33] Zao & Lee [2019] FamCAFC 169, [42].

126In all the circumstances, I decline to summarily dismiss the husband’s application on the grounds raised in the non-compliance argument.

127I consider it more appropriate to stay that application on terms, and to make self-executing orders whereby the application will be dismissed without further notice if those terms are not met.

128Specifically, I propose to make orders staying the application, thereby prohibiting the husband from taking further steps in the case, until he files and serves an affidavit confirming that he has complied with each and every requirement imposed on him by the orders for disclosure and production of documents made on 11 December 2018 and 19 August 2019. He will be required to annexe to that affidavit a list of all documents disclosed and produced pursuant to those orders, and providing adequate detail to support any contention that any document meeting the descriptions in the relevant orders does not exist or cannot, even with reasonable enquiry, be produced.

129I propose to make a self-executing order whereby, if the husband fails to file that affidavit within the time specified, his substantive application as amended will be dismissed.

130Given the potential consequences to the husband of the latter order, procedural fairness dictates that I should hear from his counsel as to what timeframe would be reasonable for compliance. Given the matters already set out in these reasons, and the length of time for which the matters in issue have been squarely raised, the husband cannot reasonably insist on an indulgent timeframe.

Proposed orders

131Subject to any submissions as to timeframes, or as to form more generally, I propose to make the following orders:

1.The husband’s Form 1 application filed on 11 October 2018, as subsequently amended, be and is hereby summarily dismissed pursuant to s 45A(2):

(a)insofar as it seeks relief pursuant to s 79A(1)(c);

(b)insofar as it seeks relief pursuant to s 79A(1)(d) by reference to circumstances which relate to the adult child of the marriage, [Child B]; and

(c)insofar as it purports to seek relief in reliance on section 79A(1A).

2.The said application otherwise be and is hereby stayed pending compliance by the husband with the immediately following order.

3.By no later than 4.00 pm on [date to be specified] the husband must file an affidavit, sworn or affirmed by him personally:

(a)confirming that he has complied with each and every requirement imposed on him by the orders for disclosure and production of documents made on 11 December 2018 and 19 August 2019;

(b)annexing to that affidavit a list of all documents disclosed and produced pursuant to those orders; and

(c)providing adequate detail to support any contention that any document meeting the descriptions in the relevant orders does not exist or cannot, even with reasonable enquiry, be produced.

4.In the event that the husband does not file the affidavit required pursuant to the immediately preceding order by 4.00 pm on [the specified date] the balance of his Form 1 application filed on 11 October 2018 as subsequently amended be and is hereby dismissed.

5.In the event that the husband complies with the order contained in paragraph 3 of these orders, the file is to be referred to the presiding judge in chambers for the allocation of a further directions hearing.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Family Court of Western Australia.

KM
Associate

5 DECEMBER 2019