Read & Fry
[2025] FedCFamC1F 259
•23 April 2025
FEDERAL CIRCUIT AND
FAMILY COURT OF AUSTRALIA (DIVISION 1)Read & Fry [2025] FedCFamC1F 259
File number(s): BRC 2772 of 2011 Judgment of: HOGAN J Date of judgment: 23 April 2025 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Where an application was made to set aside final orders made in April 2019 – Where there is no reasonable prospect or likelihood of success – Application summarily dismissed. Legislation: Family Law Act 1975 (Cth)
Federal Circuit and Family Court of Australia Act 2021 (Cth) s 46.2
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 10.09 and 10.11
Cases cited: Bigg & Suzi (1998) FLC 92-799; [1998] FamCA 14
CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67
Friar & Friar [2011] FamCAFC 71
Karlsson & Karlsson [2020] FamCAFC 207
Korsky & Bright and Anor (No 2) (2007) FLC 93-352; [2007] FamCA 1512
Kowalski v MMAL Staff Superannuation Fund Pty Ltd (2009) 259 ALR 319; [2009] FCAFC 117
Lindon v Commonwealth of Australia (No 2) (1996) 136 ALR 251; [1996] HCA 14
Lysaght Building Solutions Pty Ltd (t/as Highline Commercial Construction) v Blanalko Pty Ltd (2013) 42 VR 27; [2013] VSCA 158
Olman and Anor & Teitzel [2020] FamCAFC 136
Pelerman & Pelerman (2000) FLC 93-037; [2000] FamCA 881
Ritter & Ritter and Anor (2020) FLC 93-957; [2020] FamCAFC 86
Simmons and Anor & Simmons (2008) 40 Fam LR 520; [2008] FamCA 1088
Spencer v Commonwealth of Australia (2010) 241 CLR 118; [2010] HCA 28
Division: First Instance Number of paragraphs: 11 Date of hearing: 21 August 2023 Place: Brisbane Counsel for the Applicant: Mr North Solicitor for the Applicant: Lillas & Loel Lawyers The Respondent: Litigant in person ORDERS
BRC 2772 of 2011 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR FRY
Applicant
AND: MS READ
Respondent
ORDER MADE BY:
HOGAN J
DATE OF ORDER:
23 APRIL 2025
THE COURT ORDERS BY WAY OF FINAL ORDER THAT:
1.The Amended Response to Initiating Application filed 27 July 2023 is dismissed.
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).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of 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 Read & Fry has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
HOGAN J:
On 5 April 2019, an order was made (the April 2019 order) to finalise property proceedings between the parties, who had previously married in 2000, separated on 8 January 2005 and were divorced in 2011.
By way of broad summary, the terms of the April 2019 order included that, within one calendar month, Mr Fry would:
(a)pay Ms Read the sum of $107,110, in default of which payment two lots of real property[1] (the prescribed real property) would be listed for sale and sold and the sale proceeds be applied to pay Ms Read such amount (and interest on the same); and
(b)do all things, including signing all documents, as may be required to transfer all of his right, title and interest in real property situated at Q Street, Town R, State K, United States of America (the State K property) to Ms Read.
[1]Described as Lot 1, Town B, Queensland, Title reference number …, Lot 2, Town B, Queensland, Title reference number … and Lot 3, Town B, Queensland, Title reference number ….
The April 2019 order also provided that Ms Read give Mr Fry vacant possession of the prescribed real property, Mr Fry give Ms Read vacant possession of the State K property (upon transfer of his interest in the same to her) and that she indemnify him against all and any liability owing to a commercial lender for the home equity loan secured by lien or mortgage over the property; further, on receiving payment of the $107,110 (and any interest payable) from Mr Fry, Ms Read was to cause the lien or mortgage secured over the State K property to be repaid and discharged or refinanced and discharged.
Mr Fry failed to comply with the April 2019 order: he did not vacate the State K property and transfer his interest in it to Ms Read and he did not pay her the $107,110, plus interest. A number of subsequent orders[2] made to enforce the April 2019 order provided, amongst other things, for the vesting of the title to the State K property in Ms Read as trustee for sale of the same and for her to be able to sell it immediately; the orders also provided for the sale of the prescribed real property and subsequent deposit of the net sale proceeds from the same into trust.
[2] See, for example: Order made on 30 May 2019; Order made on 22 September 2020
After these orders were made, Mr Fry sought a number of orders[3] including that:
(a)pursuant to s 79A(1)(a) of the Family Law Act 1975 (Cth)(the Act), the orders made 5 April 2019 be varied to:
(i)delete paragraphs 6-9 therein (which relate to the order requiring him to transfer the State K property to Ms Read and deliver vacant possession of the same to her; Ms Read having to repay the mortgage on receipt of a $107,110 payment from Mr Fry; and Ms Read delivering him vacant possession of the prescribed real property); and
(ii)order the release of the moneys held in the trust account of a solicitor – being the amount of approximately $206,576.59, obtained from the sale of the prescribed real property; or
(b)in the alternative, pursuant to s 79A(1)(a) of the Act, the orders made 5 April 2019 be set aside and orders for the hearing of the matter pursuant to s 79 be made; and
(c)in the event that orders were made in State K for the sale of the State K property, the orders made 5 April 2019 be varied pursuant to s 79A(1)(b) of the Act to delete paragraphs 6-9 therein.
[3]Initially by an Application in a Proceeding sealed 30 September 2022 and later by an Amended Response to Initiating Application filed 27 July 2023.
Ms Read opposed Mr Fry’s application. She proposed that she continue to take steps to sell the State K property, as she was empowered to do. She also proposed that the proceedings sought to be advanced by Mr Fry to set aside the April 2019 order be dismissed summarily on the basis that he had no reasonable prospect of successfully prosecuting the same and/or that the same have no reasonable likelihood of success.[4]
[4]Section 46(2) of the Federal Circuit and Family Court of Australia Act 2021 (Cth); Rules 10.09 and 10.11 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth); see, for example: Spencer v Commonwealth of Australia (2010) 241 CLR 118 at [22], [52].
I am not persuaded that Mr Fry has reasonable prospects of persuading of the existence of a miscarriage of justice during the trial before Forrest J which culminated in the making of the April 2019 order; I am not persuaded of the claim that, during the same, Ms Read gave false evidence – whatever differences in her accounts about her retirement funds, these were made known at the trial and it was open to the trial judge to regard these in the manner that he did. That these were treated in a way with which Mr Fry did not agree does not give rise to the existence of a miscarriage of justice.
I do not accept that fresh evidence is now available for Mr Fry’s case which reasonably diligent efforts at the time of the trial before Forrest J (which preceded the April 2019 order) did not produce. I consider the evidence which it was submitted fell within this category was always available to Mr Fry, with reasonable diligence, had he considered, at that time, that it would have assisted his case.[5]
[5] CDJ v VAJ (1998) 197 CLR 172 at [116].
It was submitted that when, during the previous proceedings, Mr Fry was living internationally, he was unaware of the extent of the documents in the State K property which he now poses. However, I note that these documents remained in the home which he co-owned and in which he subsequently lived; I also note that Mr Fry in essence simply determined not to access such documents at the relevant time, either by travelling personally to the United States of America to inspect and collect them or by instructing someone else on his behalf to collect them, or by engaging a lawyer to conduct an inspection of the same.
Counsel for Mr Fry also submitted that Mr Fry was now able to produce a particular person as a witness, a person whom he had been unable to produce for the purpose of the previous proceedings. However, despite the contention that this person was someone who could have given important and relevant evidence, it appears that the attempts then made to contact him were limited to using the most recent phone number Mr Fry had, contacting a LinkedIn page which Mr Fry believed was his and contacting a mutual friend who had seemingly stayed in contact with him – there was no evidence before the Court that Mr Fry had sought to contact the potential witness in any other way: for example, by doing a search of an electoral roll or by checking all other publicly listed means of finding someone. Given this, I am not persuaded that Mr Fry had exercised reasonable diligence prior to the trial to procure such evidence.
Despite the valiant efforts made by Counsel for Mr Fry and noting authority’s admonishment to exercise the power to summarily dismiss cautiously – because it is a serious matter to deprive a person of access to courts of law[6] – I am persuaded that his claim to have the April 2019 order set aside on the contended-for bases has no reasonable prospect or likelihood of success; consequently, I exercise the discretion to summarily dismiss the same.
[6]See, for example: Lindon v Commonwealth of Australia (No 2) (1996) 136 ALR 251 at 255–256; Bigg v Suzi (1998) FLC 92-799 at 84,974–84,975; Pelerman v Pelerman (2000) FLC 93-037 at [46]; Korsky and Bright (No 2) (2007) FLC 93-352; Simmons & Simmons (2008) 40 Fam LR 520 at [51]; Kowalski v MMAL Staff Superannuation Fund Pty Ltd (2009) 259 ALR 319 at [28]; Friar & Friar [2011] FamCAFC 71 at [51]; Lysaght Building Solutions Pty Ltd (t/as Highline Commercial Construction) v Blanalko Pty Ltd (2013) 42 VR 27 at [27]; Olman & Teitzel [2020] FamCAFC 136 at [28]; Karlsson & Karlsson [2020] FamCAFC 207 at [38] and [41]; Ritter & Ritter (2020) FLC 93-957 at [66].
I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Hogan. Associate:
Dated: 23 April 2025
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