Ritter & Ritter & Anor

Case [2019] FCCA 782


FEDERAL CIRCUIT COURT OF AUSTRALIA

RITTER & RITTER & ANOR [2019] FCCA 782
Catchwords:
FAMILY LAW – Summary dismissal application of s.79A application – relevant legal principles.

Legislation:

Family Law Act 1975 (Cth), s.79A

Federal Circuit Court of Australia Act 1999, s.17A
Federal Circuit Court Rules 2001, r.13.10
Federal Court Act 1976, s.31A
Evidence Act 1995, s.140

Cases cited:

Bigg v Suzi [1998] FLC 92-799
Boston Commercial Services Pty Ltd v GE Capital Finance Australia Pty Ltd [2006] FCA 1352

Derry v Peek (1889) 14 AppCas 337

Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87

Florie (1980) FLC 90-857

Fortron Automotive Treatments Pty Ltd v Jones (No.2) [2006] FCA 1401

Gonzalez-Barbosa v Go To Court Franchising Pty Ltd & Anor [2017] FCCA 361

In the Marriage of Arpas (1989) FLC 92-042

In the Marriage of Gebert (1990) 14 FamLR 62

In the Marriage of Holland (1982) FLC 91-243

In the Marriage of Kokl (1981) 7 Fam LR 59

In the Marriage of Parker (1983) FLC 91-364

In the Marriage of Patching (1995) FLC 92-585

In the Marriage of Prowse (1995) FLC 92-557

In the Marriage of Spratley (No 2) (1978) FLC 90-414

In the Marriage of Suiker (1993) 17 FamLR 236

Jefferson Ford Pty Ltd v Ford Motor Co of Australia (2008) 167 FCR 372
Lindon v The Commonwealth (1996) 190 CLR 311

Molier & Van Wyk (1980) 7 Fam LR 18

Mullae (1983) FLC 91-303

Official Trustee in Bankruptcy v Donovan (1996) FLC 92-703

Parker & Parker (1983) FLC 91 – 364

Pelerman & Pelerman (2000) FLC 93-037

Re Gilbert and the Estate of Gilbert (deceased) (1990) FLC 92-125

Riva NSW Pty Limited v Official Trustee in Bankruptcy [2017] FCA 188
Spencer v The Commonwealth [2010] HCA 28

Thorne v Kennedy [2017] HCA 49

Vivid Entertainment LLC v Digital Sinema Australia Pty Ltd [2007] FMCA 157

White Industries Australia v Assistant Commissioner of Taxation [2007] FCA 511

Applicant: MR RITTER
First Respondent: MS RITTER
Second Respondent: MS X RITTER
File Number: PAC 3900 of 2018
Judgment of: Judge Obradovic
Hearing date: 22 March 2019
Date of Last Submission: 22 March 2019
Delivered at: Parramatta
Delivered on: 30 April 2019

REPRESENTATION

Appearing for the Applicant: Mr Lynch
Solicitors for the Applicant: Beswick Lynch Lawyers
Appearing for the First Respondent: Mr Hawach
Solicitors for the First Respondent: McAuley Hawach Lawyers

Counsel for the Second Respondent:

Mr Todd

Solicitors for the Second Respondent:

Everett Evans Solicitors

ORDERS

  1. The Initiating Application filed 20 August 2018 is summarily dismissed.  

  2. Remove all outstanding issues from the list of cases awaiting finalisation.

IT IS NOTED that publication of this judgment under the pseudonym Ritter & Ritter & Anor is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

PAC 3900 of 2018

MR RITTER

Applicant

And

MS RITTER

First Respondent

MS X RITTER

Second Respondent

REASONS FOR JUDGMENT

Introduction

  1. On 16 July 2012, the Federal Circuit Court of Australia made final orders between Mr Ritter…

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Details
AGLC
Ritter & Ritter & Anor [2019] FCCA 782
Case
[2019] FCCA 782
Decision Date

CaseChat Overview and Summary

In the Family Court of Australia, Judge Obradovic considered an application by the respondents for the summary dismissal of an Initiating Application filed on 20 August 2018, which sought to set aside or vary final property orders pursuant to section 79A of the *Family Law Act 1975* (Cth). The parties involved were the applicant, referred to as Ritter, and the respondents, also referred to as Ritter and another party.

The central legal issue before the court was whether the applicant's section 79A application had any real prospect of success, such that it should be permitted to proceed to a final hearing, or whether it was so lacking in merit that it should be summarily dismissed. This required the court to assess the applicant's grounds for seeking to set aside the original orders against the relevant legal principles governing applications for summary dismissal in family law proceedings.

Judge Obradovic applied the principles established in cases such as *Daher v De George* and *R v R*, which outline the stringent test for summary dismissal. The court found that the applicant had failed to demonstrate any arguable case or substantial question to be tried regarding the alleged fraud, duress, or other vitiating factors necessary to justify setting aside the final property orders. Consequently, the court concluded that the application had no reasonable prospect of success and that it was appropriate to dismiss the proceedings summarily to avoid unnecessary costs and delay.

The court ordered that the Initiating Application filed on 20 August 2018 be summarily dismissed and that all outstanding issues related to this application be removed from the list of cases awaiting finalisation.

Orders

Orders of the court

1.

The Initiating Application filed 20 August 2018 is summarily dismissed.

2.

Remove all outstanding issues from the list of cases awaiting finalisation.

Background

Background to the litigation

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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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