Pullman & Pullman
[2013] FCCA 31
•19 April 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| PULLMAN & PULLMAN | [2013] FCCA 31 |
| Catchwords: PRACTICE & PROCEDURE – Summary dismissal – application for summary dismissal – where Respondent seeks summary dismissal of application – whether the substantive application has a reasonable prospect of success – whether Applicant has an arguable case – application need not be hopeless or bound to fail to have no reasonable prospects of success. |
| Legislation: Federal Circuit Court of Australia Act 1999 (Cth) s.17A |
| Cases cited: Bigg v Suzi (1998) FLC 92-799 Clifton and Stuart (1991) 14 Fam LR 511; FLC 92-194 Ferrall & Anor v Blyton & Ors [2000] FamCA 1442; (2000) 27 Fam LR 178; FLC 93-054 Gavin and Garden [2011] FamCA 190 Gebert & Gebert (1990) 14 Fam LR 62; FLC 92-137; 99 FLR 147 G & T [2003] FamCA 1076; (2004) 32 Fam LR 101; FLC 93-176 Harrington v Lowe [1996] HCA 8; (1996) 190 CLR 311; FLC 92-668 Holland and Holland (1982) 8 Fam LR 233; FLC 91-243 Korsky & Bright (No 2) [2007] FamCA 1512; (2007) FLC 93-352; (2008) 38 Fam LR 106 Lindon v Commonwealth of Australia (No 2) [1996] HCA 14; (1996) 136 ALR 251; 70 ALJR 541 Liu and Liu (1984) FLC 91-572 Molier and Van Wyk (1980) 7 Fam LR 18; FLC 90-911 Pelerman v Pelerman [2000] FamCA 881; (2000) FLC 93-037 Public Trustee (as executor of the estate of Gilbert) v Gilbert (1991) 14 Fam LR 573; FLC 92-211 Sandrk and Sandrk (1991) 15 Fam LR 197; FLC 92-260 Simpson and Hamlin (1984) FLC 91-576 Suiker & Suiker (1993) 17 Fam LR 236; FLC 92-436 |
| Applicant: | MR PULLMAN |
| Respondent: | MS PULLMAN |
| File Number: | SYC 4920 of 2011 |
| Judgment of: | Judge Scarlett |
| Hearing date: | 5 April 2013 |
| Date of Last Submission: | 5 April 2013 |
| Delivered at: | Sydney |
| Delivered on: | 19 April 2013 |
REPRESENTATION
| Counsel for the Applicant: | Mr Givney |
| Solicitors for the Applicant: | Taylor & Scott |
| Counsel for the Respondent: | Mr Jackson |
| Solicitors for the Respondent: | Hughes & Taylor |
ORDERS
The Response filed on 3 December 2012 is dismissed.
The Respondent is to file and serve an Amended Response within 21 days.
The Respondent is given leave to file and serve an affidavit setting out the facts upon which she seeks to rely in support of her Amended Response within 21 days.
IT IS NOTED that publication of this judgment under the pseudonym Pullman & Pullman is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYC 4920 of 2011
| MR PULLMAN |
Applicant
And
| MS PULLMAN |
Respondent
REASONS FOR JUDGMENT
Application
The substantive application is an Application to set aside property orders made by consent on 5th December 2011. The Respondent wife has, by her Response filed on 3rd December 2012 seeks summary dismissal of the Husband’s Application.
Background
The parties were married [in] 1983 and separated under the one roof in November 2009. They separated physically on 7th January 2012.
There are three children of the marriage, all adults. The eldest of the parties’ children, [X], was born [in] 1984, has been diagnosed with Down Syndrome. She has a moderate level intellectual disability and is not self-sufficient.
[X] was living in the home with the parties, even though the parties themselves were separated under the one roof.
The Husband commenced proceedings by way of an Application for settlement of property between the wife and himself on 15th August 2011. The Wife filed a Response on 3rd November 2011.
On 7th November 2011 the parties were directed to attend a Conciliation Conference before a Registrar on 5th December 2011. On that day the parties negotiated a settlement of the property matters between them and entered into Consent Orders before the Registrar.
Those Orders provided that (in summary):
a)The parties would instruct estate agents and solicitors to sell the former matrimonial home at [L]; and
b)After payment of the outstanding mortgage, agent’s commission, rate adjustments, solicitors’ costs and other expenses, the parties would divide the net proceeds of sale in the following proportions:
i)60% to the Wife; and
ii)40% to the Husband.
On 8th August 2012 the Husband filed an Application in a Case seeking orders to enforce some of the provisions of the Consent Orders. The wife filed a Response on 4th October 2012.
On 20th August 2012 the Husband was advised by an officer of the New South Wales Department of Family and Community Services that the Wife had placed [X] in respite care a week before and was not going to collect her. The Husband shortly afterwards arranged to collect [X] from the respite care facility and from late August 2012 had [X] in his full time care.
The Application was returnable on 8th October 2012, on which date the Husband filed a Notice of Discontinuance. However, he also filed an Initiating Application seeking Orders setting aside the Consent Orders of 5th December 2011 under the provisions of s.79A of the Family Law Act. The Application was returnable on 3rd December 2012.
On 3rd December 2012 the Wife filed a Response, seeking dismissal of the Initiating Application with costs. That same day, the parties entered into Interim Consent Orders providing that the net proceeds of sale of the [L] property should be placed in a controlled monies account.
The Wife’s application in her Response for summary dismissal of the Initiating Application was listed for hearing on 5th April 2013.
Orders Sought
In his Application filed on 8th October 2012, the Husband seeks orders that:
a)The Orders made on 5th December 2011 be set aside under the provisions of s.79A(1)(a) of the Family Law Act;
b)That the [L] property be listed for sale;
c)That the net proceeds of sale after payment of: agent’s commission, outstanding rates, legal costs and disbursements; and any Valuer’s fees should be divided between the parties in the following proportions:
i)In payment of 60% to the Husband; and
ii)In payment of 40% to the Wife.
d)In the alternative, that the Wife should pay to the Husband adult child maintenance for the time that the parties’ daughter [X] remains in the Husband’s full time care.
In her Response, the Wife seeks orders that:
a)The Husband’s Initiating Application should be dismissed; and
b)Costs.
Section 79A of the Family Law Act
The Husband is seeking that orders be made under s.79A of the Family Law Act. In particular, he is relying on paragraphs (a) and (d) of subsection 79A(1), which provide:
Where, on application by a person affected by an order made by a court under section 79 in property settlement proceedings, the court is satisfied that:
(a)there has been a miscarriage of justice by reason of fraud, duress, suppression of evidence (including failure to disclose relevant information), the giving of false evidence or any other circumstances; or
…
(d)in the circumstances that have arisen since the making of the order, being circumstances of an exceptional nature relating to the care, welfare and development of a child of the marriage, the child or, where the applicant has caring responsibility for the child (as defined in subsection (1AA), the applicant, will suffer hardship if the court does not vary the order or set the order aside and make another order in substitution for the order; or
…
the court may, in its discretion, vary the order or set the order aside and, if it considers appropriate, make another order under section 79 in substitution for the order so set aside.
Subsection (1AA) defines the term caring responsibility in this way:
79(1AA) For the purposes of paragraph (1)(d), a person has caring responsibility for a child if:
(a)the person is a parent of the child with whom the child lives; or
(b) a parenting order provides that:
(i) the child is to live with the person; or
(ii) the person has parental responsibility for the child.
Objection to Evidence
Mr Jackson of counsel, who appeared for the Wife, objected to the reception into evidence of paragraphs 16 to 20 of the Husband’s affidavit of 5th October 2012, which purport to deal with matters raised in the Conciliation Conference before the Registrar on 5th December 2011 on the basis that those paragraphs dealt with settlement negotiations and were therefore inadmissible under the provisions of s.131(1) of the Evidence Act 1995. Subsection (1) provides that evidence is not to be adduced of communications between persons in dispute in connection with an attempt to negotiate a settlement of the dispute or of any document that has been prepared in connection with any attempt to negotiate a settlement of the dispute.
Mr Givney of counsel, who appeared for the Husband, submitted that the material was admissible, relying on the decision of the High Court in Harrington v Lowe[1]. He submitted that where a party had not made full disclosure at a Conciliation Conference, it would be a nonsense if the evidence were not to be admitted.
[1] [1996] HCA 8; (1996) 190 CLR 311; FLC 92-668.
In reply, Mr Jackson submitted that this was not a case of non-disclosure by the Wife and that evidence of matters that took place in the conference was inadmissible.
Submissions
Both parties’ counsel prepared Case Outline Documents and written submissions.
Counsel for the Wife submitted that s.79(1)(d) of the Act provides that where exceptional circumstances relating to the welfare of a child of the marriage have arisen and either the child or the applicant will suffer hardship, the court in its discretion may vary the order or set the order aside. He referred to the example given by Nygh J in Liu and Liu[2] of a child suffering a serious chronic illness necessitating the remodelling of the house in which the child lives.
[2] (1984) FLC 91-572
Mr Jackson submitted that the Husband’s evidence would not satisfy the Court that he would suffer financial hardship if the parties’ child [X] were to live with him. What amounts to “exceptional circumstances” is a matter of fact and degree. In Simpson and Hamlin[3] it was held that a simple change to custodial arrangements for a child after the making of a property order would not constitute “exceptional circumstances”. The test would appear to be whether the change in care arrangements was within the contemplation of the parties at the time the original property order was made.
[3] (1984) FLC 91-576
Counsel for the Wife also considered the situation if the Husband were to rely on s.79A(1)(d) of the Act, pointing out that there is no case law that he has been able to ascertain where the definition of a “child” relevant to s.79A(1)(d) has been considered. However, he submitted that there is no reference in the Act to matters germane to the care, welfare and development of a child who is over the age of 18 years. For example, subsections 61C(1) and 62G(1) both refer to children under the age of 18 and s.65H provides that a parenting order must not be made for a child who is aged 18 or over and any existing order stops being in force once the child turns 18.
Mr Jackson submitted that the authorities showed that miscarriage of justice has to do with the integrity of the judicial process and it is not sufficient that a party has acted under a mere mistaken belief as to some fact or circumstance (Clifton & Stuart[4]; Public Trustee (as executor of the estate of Gilbert) v Gilbert[5]; Bigg v Suzi[6]; Suiker & Suiker[7]).
[4] (1991) 14 Fam LR 511; FLC 92-194
[5] (1991) 14 Fam LR 573; FLC 92-211
[6] (1998) FLC 92-799
[7] (1993) 17 Fam LR 236; FLC 92-436
It was also submitted that a miscarriage of justice within the meaning of s.79A can arise only from limited circumstances in existence at the date of the order (Molier and Van Wyk[8]; Holland and Holland[9]).
[8] (1980) 7 Fam LR 18; FLC 90-911
[9] (1982) 8 Fam LR 233; FLC 91-243
There is no miscarriage of justice where a party of full age, with full knowledge, choosing not to take legal advice, makes a more than usually substantial allowance in a consent order (Gebert & Gebert[10], following Holland).
[10] (1990) 14 Fam LR 62; FLC 92-137; FLR 147
As to the summary dismissal argument, Mr Jackson submitted, relying on the decision in Bigg v Suzi, that the husband’s argument that he was effectively promised, at the time of the settlement, that [X] would be living with her mother and not him, would not promote a prima facie section 79A case, even if sought under s.79A(1)(d).
Counsel for the Wife also relied on a decision of O’Reilly J in G & T[11], where her Honour held that the applicant must show on a prima facie basis that one of the grounds for s.79A relief is made out and that “by reason of” that ground there has been a miscarriage of justice arising out of the judicial process.
[11] [2003] FamCA 1076; (2004) 32 Fam LR 101; FLC 93-176
Counsel also quoted another “helpful Full Court decision”[12] where it was said at [25]:
[12] The title of which he chose not to reveal
I paraphrase the salient points as follows:
(1)that relief for summary dismissal is rarely and sparingly provided;
(2)that it is only available if it is clear on the face of the documents of the person asserting a cause of action that there is no reasonable cause of action or that it is a frivolous or vexatious one;
(3)that it is not enough to attain summary dismissal to show that it is a weak case;
(4)that there is a defect in the pleading and it appears that the party still has a reasonable cause of action, the Court will allow the party to reframe its pleading; and
(5)that one only summarily dismisses if it is clear that the case is doomed to fail.[13]
[13] Written Submissions on behalf of the Wife page 16 at paragraph 46
Counsel for the Wife also referred the Court to the well-known authority on summary dismissal, the High Court decision of Lindon v Commonwealth of Australia (No 2)[14].
[14] [1996] HCA 14; (1996) 136 ALR 251; 70 ALJR
In short, the submission is that, on the current evidence, the parties’ child [X] is not a child but an adult and “in assessing that because she is not a ‘child’ relevant to Section 79A(1)(d), a Summary Dismissal application becomes even more powerful, and is likely to succeed no matter what further evidence is presented by the Husband.”[15]
[15] Written Submissions on behalf of the Wife page 16 at 48
Counsel for the Husband submitted that there is overwhelming evidence that the intention of the parties at the time of the Consent Orders was that the child [X] would be living with and cared for by the Wife following the making of the Orders. As the Wife made other arrangements for [X] and the Husband has been caring for the child, the Husband seeks to set aside the Consent orders in which the Wife received 60 per cent of the asset pool and he received 40 per cent.
The Husband claims that when the parties attended a Conciliation Conference on 5th December 2011, the Registrar said:
“It is expected that the Wife will continue to care for [X] and continue to receive the carer’s pension for this”.[16]
[16] Husband’s Outline of Case Document page 6
He claims that the adjustment in favour of the Wife, in that she received 60% of the net asset pool, was because of her continuing care of [X].
The Husband seeks to set aside the Orders on the basis of s.79A(1)(a) and (d).
As to s.79A(1)(a), it is submitted that there was a clear failure to disclose relevant information at the Conciliation Conference. The information not disclosed is that the Wife did not intend to care for [X] after the Orders were made. This conclusion is supported by:
a)the Wife’s documents;
b)the Wife’s attendance at the conference when the Registrar expressed a view that the Wife would have the ongoing care of [X]; and
c)the fact that the division of the asset pool significantly favoured the Wife.
The submission is that events subsequent to the Orders being made indicate the true intention of the Wife at the time of the making of the Orders, which remove the question of “hopelessness” of the Application. Ultimately, the Court will have to decide the intention of the Wife at the time of the making of the orders.
Mr Givney of counsel, who appeared for the Husband, also submitted that the Application to set aside the Orders also falls within s.79A(1)(d) as there have been circumstances of an exceptional nature relating to the care, welfare and development of a child of the marriage and, as such, the Husband will suffer hardship.
It was submitted that this is not a case where the Court would be unable to go behind the Orders which were brought about by a compromise between the parties. This case can be distinguished from such a view for a number of reasons.
Mr Givney, too, refers the Court to the decision of Kirby J in Lindon v Commonwealth, and also to the decision of the Full Court of the Family Court in Korsky & Bright (No 2)[17]. Further, he referred to the decision of the Full Court in Ferrall & Anor v Blyton & Ors[18] where Nicholson CJ, Lindenmayer and Kay JJ followed Lindon v Commonwealth, Bigg v Suzi[19] and Pelerman v Pelerman[20].
[17] [2007]FamCA 1512; (2007) FLC 93-352; (2008) 38 Fam LR 106
[18] [2000] FamCA 1442; (2000) 27 Fam LR 178; FLC 93-054
[19] supra
[20] [2000] FamCA 881; (2000) FLC 93-037
It is submitted on behalf of the Husband that the facts and circumstances in his affidavit material indicate that he has more than an arguable case with respect to the Application.
Summary Dismissal
Decisions of the Full Court of the Family Court such as Bigg v Suzi and Ferrall v Blyton dealing with summary dismissal by the Family Court should be read with some caution when applied to the powers of the Federal Circuit Court, because the situation is not entirely the same.
The Federal Circuit’s power of summary dismissal of an Application is governed by s.17A of the Federal Circuit of Australia Act 1999[21] and Rule 13.10 of the Federal Circuit Court Rules 2001[22].
[21] Formerly the Federal Magistrates Act 1999
[22] Formerly the Federal Magistrates Court Rules 2001
Subsection 17A(2) provides that the Court:
…may give judgment for one party against the other in relation to the whole or any part of a proceeding if:
(a)the first party is defending the proceeding or that part of the proceeding; and
(b)the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding.
The test to be applied is whether or not an application has a reasonable prospect of success, not whether an application is “doomed to fail”. This is made clear by subsection (3):
For the purposes of this section, a defence or a proceeding or a part of a proceeding need not be:
(a) hopeless; or
(b) bound to fail;
for it to have no reasonable prospects of success.
Rule 13.10 provides:
The Court may order that a proceeding be stayed, or dismissed generally or in relation to any claim for relief in the proceeding, if the Court is satisfied that:
(a)the party prosecuting the proceeding or claim for relief has no reasonable prospect of successfully prosecuting the proceeding or claim; or
(b)the proceeding or claim for relief is frivolous or vexatious; or
(c)the proceeding or claim for relief is an abuse of the process of the Court.
In my view, the principles set out by Kirby J in Lindon v Commonwealth (No 2) still provide, with respect, a most helpful guide to the Court when dealing with an application for summary dismissal. His Honour held at [14]:
The approach to be taken by the Court to the Commonwealth’s application for summary relief is not in doubt.
1. It is a serious matter to deprive a person of access to the courts of law for it is there that the rule of law is upheld, including against Government and other powerful interests. This is why relief…is rarely and sparingly provided.
2. To secure such relief, the party seeking it must show that it is clear, on the face of the opponent’s documents, that the opponent lacks a reasonable cause of action or is advancing a claim that is clearly frivolous or vexatious.
3. An opinion of the Court that a case appears weak and such that it is unlikely to succeed is not, alone, sufficient to warrant summary termination. Even a weak case is entitled t to the time of a court. Experience teaches that the concentration of attention, elaborated evidence and argument and extended time for reflection will sometimes turn an apparently unpromising cause into a successful judgment.
4. Summary relief…for absence of a reasonable cause of action, is not a substitute for proceeding by way of demurrer. If there is a serious legal question to be determined, it should ordinarily be determined at a trial for the proof of facts may sometimes assist the judicial mind to understand and apply the law that is invoked and to do so in circumstances more conducive to deciding a real case involving actual litigants rather than one determined on imagined or assumed facts.
5. If, notwithstanding the defects of pleadings, it appears that a party may have a reasonable cause of action which it has failed to put in proper form, a court will ordinarily allow that party to reframe its pleading…
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.
Conclusions
The Full Court decision of Pelerman v Pelerman[23] is of assistance in this matter, as it deals with an appeal against a declaration that an application to vary consent property orders did not, as a matter of law, constitute “duress”, “suppression of evidence” or “any other circumstance” within the meaning of s.79A(1)(a).
[23] supra
The Full Court held at [63]:
The absence of disclosure by the husband of financial circumstances, the details of which were peculiarly within his knowledge, may[24] indicate that the wife has a case to advance o the ground of miscarriage of justice due to “any other circumstance”. The fact that the Amended Particulars may be less than persuasive in that regard and demonstrate only a weak case is not sufficient to conclude that the Application is “doomed to failure” in the context of an Application for Summary Dismissal.[25]
[24] Emphasis in original
[25] (2000) FLC 93-037 at [63] per Ellis, Lindenmayer and Rose JJ
Their Honours also held, at [79]:
Having regard to the Amended Particulars it would seem that it was not merely that “inadequate information” was given, but no information at all was provided in relation to the husband’s financial circumstances. Consequently, there may[26] have been “suppression of evidence” by the husband. For that reason we conclude that this ground of appeal has been established and that the trial Judge erred in dismissing the Application on a summary basis.[27]
[26] Emphasis in original
[27] (2000) FLC 93-037 at [79]
The present Application deals with claims under s.79A(1) both under paragraphs (a) and (d). It only needs to be shown that the Applicant has an arguable case under one of those paragraphs for the application for summary dismissal not to succeed.
I consider that the facts relied on by the Husband may indicate that he has a reasonable cause of action under s.79A(1)(a) in his claim that the Wife did not disclose relevant information, namely that it was not her intention to continue to provide a home for the parties’ daughter [X] and continue as her carer after the Consent Orders were made. It will be a matter for evidence on the part of the Husband.
The test is not whether an applicant’s case is “hopeless” or “bound to fail” (or even “doomed to fail”) but whether it does not have any reasonable prospect of success.
Applying that test to the Applicant’s other claim, under s.79A(1)(d), I have also come to the view that it cannot be said that the Applicant has no reasonable prospect of successfully prosecuting his claim. The parties’ adult daughter, [X], is no longer under the age of 18, so she is not a child in the sense referred to in sections 61C, 62G or 65H. However, that is not necessarily the test. She is “a child who is 18 or over” in the sense referred to in s.66L, which provides in subsection (1) that the court may make a child maintenance order if satisfied that the provision of maintenance is necessary “because of a mental or physical disability of the child.”
In my view, the Applicant has an arguable case for a claim under paragraph 79A(1)(d).
Thus, it cannot be said that the Applicant has no reasonable prospect of successfully prosecuting his Application. It follows that the Application for summary dismissal contained in the Response does not succeed.
Accordingly, the Response will be dismissed and the Respondent will be directed to file and serve an Amended Response. The Respondent will be given leave to file and serve a further affidavit in support of the Response.
I certify that the preceding fifty-seven (57) paragraphs are a true copy of the reasons for judgment of Judge Scarlett
Associate:
Date: 12 April 2013
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