POLIK & POLIK

Case [2012] FamCA 335

FAMILY COURT OF AUSTRALIA

POLIK & POLIK [2012] FamCA 335

FAMILY LAW – PROPERTY – Application by wife for summary dismissal of s 79 proceedings commenced by husband – Parties are young, have young children and have not separated – Unusual circumstances – Whether husband’s proceedings on a summary dismissal application can be regarded as having no reasonable likelihood of success – Jurisdiction – Exercise of discretion – Jurisdiction and exercise of s 79 discretion cannot be split – Independently of that circumstance and despite unusual circumstances it is not possible at this stage to conclude that the husband’s case has no reasonable likelihood of success – Application for summary dismissal under Rule 10.12(d) dismissed

FAMILY LAW – PROPERTY – Application by wife for summary dismissal of s 79 proceedings commenced by husband – Whether husband’s proceedings an abuse of process – Consideration given to nature of the matters said to amount to an abuse of process – Allegation a serious matter requiring factual determination at a trial – Application for summary dismissal under Rule 10.12(c) dismissed
Family Law Act 1975 (Cth) s 43(1) s 75, s 79, s 81, s 90C
Family Law Rules Rule 10.12(c) and (d)
ASIC v Edensor Nominees Pty Ltd (2001) 204 CLR 559
Bain Pacific Associations LLC v Kelly (2006) FamCA 518
Beck & Beck (2004) FLC 93-181
Bigg & Suzi (1998) FLC 92-799
Custodio & Pinto (2006) FLC 93-279
Ferguson & Ferguson (1978) FLC 90-500
Figgins & Figgins (2002) FLC 93-122
Friar & Friar [2011] FamCAFC 71
Jennings & Jennings (1997) FLC 92-773
Jonah & White [2011] FamCA 221
Lindon v The Commonwealth (No 2) (1996) 70 ALJR 541
McManus & McManus (unreported, ML1477 of 1996, 21 March 1997 per Dessau J)
Neale & Neale (1991) FLC 92-242
Pelerman& Pelerman (2000) FLC 93-037
Ricci & Jones (2011) FamCAFC 222
Robson & Robson (2003) FLC 93-145
Rogers v R (1994) 181 CLR 251
Stanford & Stanford (2011) FLC 93-483
Stapleton & Hayes [2011] FamCAFC 70
Starkey & Starkey (No 2) [2009] FamCA 432
APPLICANT: Mr Polik
RESPONDENT: Ms Polik
FILE NUMBER: BRC 6338 of 2011
DATE DELIVERED: 10 May 2012
PLACE DELIVERED: Brisbane
PLACE HEARD: Brisbane
JUDGMENT OF: O'Reilly J
HEARING DATE: 5 December 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Doyle SC with him Ms Hogan
SOLICITORS FOR THE APPLICANT: HopgoodGanim Lawyers
COUNSEL FOR THE RESPONDENT: Mr Sofronoff S-G QC with him Ms McArdle
SOLICITORS FOR THE RESPONDENT: Barry.Nilsson.Lawyers

Orders

IT IS ORDERED

  1. The wife’s application (made by her response to initiating application filed 27 September 2011, Part headed “Interim or Procedural Orders Sought”) for the summary dismissal of the husband’s initiating application filed 22 July 2011 for a s 79 property order (the proceedings) is dismissed.

  2. The wife’s alternative application for a stay of the proceedings is dismissed.

  3. The costs of the parties of and incidental to the wife’s application for summary dismissal, or alternatively a stay, are reserved to the trial judge.

IT IS NOTED that publication of…

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POLIK & POLIK [2012] FamCA 335
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[2012] FamCA 335
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CaseChat Overview and Summary

In *Polik & Polik*, O'Reilly J of the Family Court of Australia considered an application by the wife for the summary dismissal of property adjustment proceedings (s 79) commenced by the husband. The parties were a young couple with young children who had not separated and intended to reconcile their marriage. The wife sought dismissal on the grounds that the husband's proceedings had no reasonable likelihood of success and constituted an abuse of process.

The court was required to determine whether, in light of the unusual circumstances of the parties' cohabitation and stated intention to reconcile, the husband's application for property orders under s 79 of the *Family Law Act 1975* (Cth) could be considered to have no reasonable likelihood of success, and whether the proceedings amounted to an abuse of process. The wife argued that the proceedings were brought for an improper purpose, given the parties' marital circumstances.

O'Reilly J reasoned that while the court can consider non-contentious facts presented by an applicant for summary dismissal, and that jurisdiction and the exercise of discretion under s 79 are distinct, it was not possible at this preliminary stage to conclude that the husband's case had no reasonable likelihood of success. The court noted that allegations of abuse of process are serious and typically require factual determination at trial. Applying principles from cases such as *Beck & Beck* and *Bain Pacific Associations LLC, BCIP Associates II-B and Pacific Equity Partners (NZ) Limited, and others and Kelly*, the judge found that the husband's reasons for bringing the proceedings, the extent of the parties' property, and the nature of the facts as they stood were matters requiring further exploration.

Consequently, the wife's applications for summary dismissal under Rule 10.12(c) and (d) of the *Family Law Rules 2004* (Cth), and her alternative application for a stay of proceedings, were dismissed. The costs of these applications were reserved to the trial judge.

Orders

Orders of the court

IT IS ORDERED

1.

The wife’s application (made by her response to initiating application filed 27 September 2011, Part headed “Interim or Procedural Orders Sought”) for the summary dismissal of the husband’s initiating application filed 22 July 2011 for a s 79 property order (the proceedings) is dismissed.

2.

The wife’s alternative application for a stay of the proceedings is dismissed.

3.

The costs of the parties of and incidental to the wife’s application for summary dismissal, or alternatively a stay, are reserved to the trial judge.

Background

Background to the litigation

After reference to Bigg & Suzi (1998) FLC 92-799; Pelerman& Pelerman (2000) FLC 93-037; Beck & Beck (2004) FLC 93-181 and other authorities, in particular Beck & Beck at [20] and [21], Finn J then said at [11]:11. In the recent decision in Bain Pacific Associations LLC, BCIP Associates II-B and Pacific Equity Partners (NZ) Limited, and others and Kelly [2006] FamCA 518, having referred to what was said in paragraph 21 of the judgment in Beck (supra), the Full Court of this Court accepted the proposition:21. … that apart from material in the case of the respondent to an application for summary dismissal, the court may have regard to relevant non-contentious facts, even if raised by the applicant for summary dismissal. (emphasis added) With minor exception, as later will be mentioned in the context of Mr Doyle’s written submissions (par 16, later set out), the wife’s material does not controvert the husband’s material. Necessarily, I will have regard only to the husband’s material (Lindon, second point), and the wife’s non-controversial material: Custodio & Pinto (above), at [11]. Jurisdiction being conceded by Mr Sofronoff, and there being no issue as to the husband’s legal capacity to apply for a s 79 order, Mr Sofronoff invoked Rules 10.12(c) and (d) to frame the wife’s case. Mr Sofronoff submitted that:1.The proceedings have no reasonable likelihood of success.2.The proceedings are based upon an improper purpose and amount thus to an abuse of process. In relation to Rule 10.12(c) Mr Sofronoff confined his argument as stated, and did not argue that the husband’s proceedings are frivolous or vexatious. In relation to these grounds, Mr Sofronoff commenced by reference to matters which he contended are common ground, which he stated as:1.The parties are not separated.2.The marriage has difficulties and pressures.3.The marriage is a difficult one.4.Neither party wishes to separate or apply for a divorce.5.Each party intends to try to make the marriage work. Collaterally to these matters, Mr Sofronoff said the following issues arise:1.The husband’s reasons for bringing the proceedings, which should be “accepted on face value” (see the principles referred to as to the need to consider the husband’s material and in relation to the wife’s material only non-contentious facts)2.The extent of the parties’ property (meaning, both now and as it may be in the future)3.The nature of the facts “as of today” (even though some of the s 79 matters are not presently explored in the parties’ material). Mr Sofronoff dealt with the ground of there being no reasonable likelihood of success, and then abuse of process. It is convenient thus to deal with the grounds in that order. In relation to Rule 10.12(d), Mr Sofronoff distinguished, correctly, between the existence of jurisdiction and the exercise of the s 79 power, observing that the Court is not compelled to make a s 79 order, and that an applicant would need to demonstrate grounds to justify an exercise of the s 79 discretion in his or her favour.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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