POLIK & POLIK

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.