Slade and Noone
[2017] FCCA 2719
•8 November 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SLADE & NOONE | [2017] FCCA 2719 |
| Catchwords: FAMILY LAW – Application in a Case filed by wife to summarily dismiss the Initiating Application filed by husband – costs on an indemnity basis. |
| Legislation: Family Law Act 1975, s.79 Federal Circuit Court of Australia Act 1999, s.17A |
| Cases cited: Bigg v Suzi [1998] FLC 92-799 Vivid Entertainment LLC v Digital Sinema Australia Pty Ltd [2007] FMCA 157 White Industries Australia v Assistant Commissioner of Taxation [2007] FCA 511 |
| Applicant: | MS SLADE |
| Respondent: | MR NOONE |
| File Number: | PAC 5167 of 2016 |
| Judgment of: | Judge Obradovic |
| Hearing date: | 7 July 2017 |
| Date of Last Submission: | 7 July 2017 |
| Delivered at: | Parramatta |
| Delivered on: | 8 November 2017 |
REPRESENTATION
| Counsel for the Applicant: | Mr Wong |
| Solicitors for the Applicant: | David Legal |
| Appearing for the Respondent: | Mr Boutros |
| Solicitors for the Respondent: | Boutros Lawyers |
ORDERS
The Initiating Application filed on 4 November 2016 is dismissed.
Within 28 days the wife is to file and serve any written submissions in respect of her application for costs.
Within a further 14 days, the husband is to file and serve any written submissions in respect of the wife’s application for costs.
IT IS NOTED that publication of this judgment under the pseudonym Slade & Noone is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PARRAMATTA |
PAC 5167 of 2016
| MS SLADE |
Applicant
And
| MR NOONE |
Respondent
REASONS FOR JUDGMENT
Introduction
These are the Reasons for Judgment in relation to an Application in a Case filed by the wife on 6 April 2017 seeking that the Initiating Application filed by the husband on 4 November 2016 be summarily dismissed and that the husband pay the wife’s costs on an indemnity basis of and incidental to the Initiating Application filed on 4 November 2016.
The husband in his Initiating Application filed on 4 November 2016 seeks by way of interim relief that the wife be restrained from dealing with the properties situated and known as Property A, folio identifier (omitted) in Deposited Plan (omitted) and the property situated at and known as Property B, New South Wales, (omitted) folio identifier (omitted) Strata Plan (omitted) (“the properties”).
The husband seeks final orders that:
a)The parties do all acts and things necessary to sell the properties;
b)Contemporaneously with the sale of the properties the parties do all things necessary to discharge the mortgage secured over the properties;
c)Upon sale of the properties and payment of all agent fees and legal costs the balance of the proceeds to be divided 50/50; and
d)Other ancillary orders.
Documents relied on
The wife relied on the following documents:
a)Application in a Case filed 6 April 2017;
b)Response filed 19 December 2016;
c)Affidavit of Ms Slade filed 19 December 2016; and
d)Financial Statement of Ms Slade filed 19 December 2016.
The husband relied on the following documents:
a)The husband relied on the following documents:
i)Initiating Application filed 4 November 2016;
ii)Financial Statement of Mr Noone filed 29 November 2016;
iii)Affidavit of Mr Noone sworn on 4 November 2016 and filed 29 November 2016;
iv)Affidavit of Mr Noone sworn and filed on 5 April 2017; and
v)Affidavit of Mr Noone sworn and filed on 21 June 2017.
The matter was dealt with on the papers, that is, without any cross-examination. However, there were lengthy submissions made on behalf of each of the husband and wife.
The Law
The Federal Circuit Court of Australia Act 1999 (Cth) empowers the Federal Circuit Court of Australia by virtue of s17A to give judgement for one party against another in relation to the whole or any part of a proceeding if the Court is satisfied that a party has no reasonable prospect of successfully prosecuting the proceeding or part of the proceeding.[1] The proceeding need not be hopeless or bound to fail for it to have no reasonable prospect of success.[2]
[1] s17A(2)
[2] s17A(3)
Furthermore, rule 13.10 Federal Circuit Court Rules 2001 (Cth) provides that the Court may order that a proceeding be dismissed if it is satisfied that the prosecuting party has no reasonable prospect of successfully doing so.
The Explanatory Memorandum[3] for s17A provides as follows:
[3] Explanatory Memorandum at [32] and [35] reproduced in Federal Circuit Court Practice looseleaf service, CCH, at [122-080]
… [the section] moves away from the approach taken by the Courts in construing the conditions for summary judgement by reference to the ‘no reasonable cause of action’ text in Dey v Victorian Railways Commissioner and General Steel Industries Inc v Commissioner of Railways (NSW). These cases demonstrate the great caution which the courts have exercised in regard to summary disposal, limiting this to cases which are manifestly groundless or clearly untenable. (citations omitted)
…
An identical amendment was inserted into the Federal Court Act… and the Judiciary Act … to provide a uniform approach to summary judgement in the High Court, Federal Court and the FMC.
The nature of the power conferred by s17A of the Federal Circuit Court Act has been comprehensively considered in Vivid Entertainment LLC v Digital Sinema Australia Pty Ltd[4], a decision cited with approval by the Federal Court in White Industries Australia v Assistant Commissioner of Taxation[5].
[4] [2007] FMCA 157
[5] [2007] FCA 511 at [58] per Lindgren J
The High Court in Spencer v The Commonwealth[6] has considered the nature of the power conferred by s31A Federal Court Act, which is in identical terms to that contained in s17A Federal Circuit Court Act. The Court in this instance has firmly kept in mind what the High Court has held therein.
[6] [2010] HCA 28 at [24] – [25] in particular
More recently, in Riva NSW Pty Limited v Official Trustee in Bankruptcy[7] Justice Perry of the Federal Court held that the principles dealing with s31A are well established and provided a useful summary to which this Court has had regard.
[7] [2017] FCA 188 at [45] – [49]
Further, in Gonzalez-Barbosa v Go To Court Franchising Pty Ltd & Anor[8], Judge A. Kelly fairly recently conducted a helpful and detailed review of relevant authorities in relation to the proper approach to be taken when considering an application for summary dismissal in the Federal Circuit Court of Australia.
[8] [2017] FCCA 361 at [
Importantly:
a)the moving party bears the onus of persuading the Court that the application has no reasonable prospects of succeeding;[9]
b)the exercise of powers to summarily terminate proceedings must always be attended with caution;[10]
c)the power to summarily dismiss should never be exercised unless it is clear that there is no real question to be tried[11];
d)the exercise of power to summarily dismiss requires a practical judgment by the Court as to whether the applicant has more than a "fanciful" prospect of success. That may be a judgment of law or of fact, or of mixed law and fact. Where there are factual issues capable of being disputed and in dispute, summary dismissal should not be awarded to the respondent simply because the Court has formed the view that the applicant is unlikely to succeed on the factual issue[12];
e)However, the inquiry required is whether there is a “reasonable” prospect of prosecuting the proceeding, not an enquiry directed to whether a certain and concluded determination could be made that the proceeding would necessarily fail.[13]
[9] Riva at [45]
[10] Spencer at [24]
[11] Ibid quoting Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87
[12] Spencer at [25]
[13] Riva at [46]
These principles are of general application to matters which fall within the jurisdiction of the Court, and there is nothing in the Federal Circuit Court Act, the Federal Circuit Court Rules or the Family Law Act to suggest to the contrary. That is, the principles are the same whether the Court is exercising jurisdiction under the Family Law Act or under any other Act which gives the Court jurisdiction.[14]
[14] Jacobs v Vale [2008] FMCAFam 641 at [14] and [20] per Jarrett FM (as he then was)
A careful examination of the older authorities such as Lindon v the Commonwealth, [15] Bigg v Suzi[16], Pelerman & Pelerman[17] and the relevant statutory provisions with which those authorities were concerned, will reveal why the power possessed by this Court is fundamentally different to the power identified in those learned decisions.[18] Therefore, those authorities are of no direct application to the present application.
[15] (1996) 190 CLR 311
[16] [1998] FLC 92-799
[17] (2000) FLC 93-037
[18] See for example the discussion in Jacobs v Vale at [8] – [13];
What is required is a practical judgment of the case at hand, or put another way, a prediction of the outcome of a trial on its merits, but not an actual adjudication of those merits.[19] The Court must consider whether the evidence at its highest and as a matter of law, establishes that the husband has no reasonable prospect of success.
[19] See e.g. Jefferson Ford Pty Ltd v Ford Motor Co of Australia (2008) 167 FCR 372 at [45]; See also Riva at [49] quoting Cassimatis
From the perspective of the current application for summary dismissal, that is, an application to summarily dismiss the husband’s application for property adjustment orders pursuant to s79 Family Law Act, it is also helpful to be reminded of what the High Court said in Stanford v Stanford[20]:
[20] [2012] HCA 52
[35] It will be recalled that s 79(2) provides that “[t]he court shall not make an order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order”. Section 79(4) prescribes matters that must be taken into account in considering what order (if any) should be made under the section. The requirements of the two sub-sections are not to be conflated. In every case in which a property settlement order under s 79 is sought, it is necessary to satisfy the court that, in all the circumstances, it is just and equitable to make the order.
[36] The expression “just and equitable” is a qualitative description of a conclusion reached after examination of a range of potentially competing considerations. It does not admit of exhaustive definition. It is not possible to chart its metes and bounds. And while the power given by s 79 is not “to be exercised in accordance with fixed rules”, nevertheless, three fundamental propositions must not be obscured.
[37] First, it is necessary to begin consideration of whether it is just and equitable to make a property settlement order by identifying, according to ordinary common law and equitable principles, the existing legal and equitable interests of the parties in the property. So much follows from the text of s 79(1)(a) itself, which refers to “altering the interests of the parties to the marriage in the property”... The question posed by s 79(2) is thus whether, having regard to those existing interests, the court is satisfied that it is just and equitable to make a property settlement order.
[38] Second, although s 79 confers a broad power on a court exercising jurisdiction under the Act to make a property settlement order, it is not a power that is to be exercised according to an unguided judicial discretion. In Wirth v Wirth, Dixon CJ observed that a power to make such order with respect to property and costs “as [the judge] thinks fit”, in any question between husband and wife as to the title to or possession of property, is a power which “rests upon the law and not upon judicial discretion”. And as four members of this court observed about proceedings for maintenance and property settlement orders in R v Watson; Ex parte Armstrong: - 25
The judge called upon to decide proceedings of that kind is not entitled to do what has been described as “palm tree justice”. No doubt he is given a wide discretion, but he must exercise it in accordance with legal principles, including the principles which the Act itself lays down.
[39] Because the power to make a property settlement order is not to be exercised in an unprincipled fashion, whether it is “just and equitable” to make the order is not to be answered by assuming that the parties’ rights to or interests in marital property are or should be different from those that then exist. All the more is that so when it is recognised that s 79 of the Act must be applied keeping in mind that “[c]ommunity of ownership arising from marriage has no place in the common law”.26 Questions between husband and wife about the ownership of property that may be then, or may have been in the past, enjoyed in common are to be “decided according to the same scheme of legal titles and equitable principles as govern the rights of any two persons who are not spouses”.27 The question presented by s 79 is whether those rights and interests should be altered.
[40] Third, whether making a property settlement order is “just and equitable” is not to be answered by beginning from the assumption that one or other party has the right to have the property of the parties divided between them or has the right to an interest in marital property which is fixed by reference to the various matters (including financial and other contributions) set out in s 79(4). The power to make a property settlement order must be exercised “in accordance with legal principles, including the principles which the Act itself lays down”. To conclude that making an order is “just and equitable” only because of and by reference to various matters in s 79(4), without a separate consideration of s 79(2), would be to conflate the statutory requirements and ignore the principles laid down by the Act.
(citations omitted)
Relevant Facts[21]
[21] At the husband’s highest
The husband migrated to Australia in about (omitted) 2006 and became an Australian citizen on (omitted) 2013.
The parties were married on (omitted) 2008.
The parties did not cohabitate prior to their marriage.
The wife was previously married, her first husband passed away on (omitted) 1989. Her first husband left her two properties in his Will, one at Property A, which is the subject property of the husband’s relief sought in his Initiating Application filed 4 November 2017 (“Property A property”) and Property C (“Property C property”). Both properties were unencumbered at the time of the wife’s first husband’s passing.
The wife sold the Property C property in about mid-2001 for approximately $110,000. The wife then purchased Property B (“Property B property”) for an amount of $195,000. This purchase occurring some seven years prior to the wife’s marriage to the husband.
The wife obtained a mortgage of $140,000 for the purchase of the Property B property which she refinanced in about 2006. The mortgage stands at $105,000. Property B property is currently rented for $400 per week which covers the loan and any additional costs to the property.
The wife became the husband’s fulltime carer whilst the husband underwent treatment for prostate cancer from 2009 to 2014. Such care included taking the husband to medical appointments, cooking, shopping, nursing the husband during chemotherapy and managing his medication. The husband’s evidence about these matters is in similar vein.
During the parties’ relationship, the husband worked in various part-time roles and received “cash payments”.
The husband says that during their relationship he “paid a share of all household expenses such as groceries, water, electricity, council rates, household pest treatments etc”. The husband says that his usual practice was to pay half of all household expenses. He says the wife would show him a bill or invoice and ask him to pay half which he did in cash.
The husband says that he gave the wife some amounts of cash during their relationship of between $500 and $200 “for no particular reason, but as a part of the usual give and take of family life”.
The husband in his Affidavit filed 5 April 2017 says that he was aware the wife owned a property in Property B and that he believed she paid for the property out of the parties “joint household funds”.
The parties did not have any joint bank accounts during their marriage.
The husband says that any assets or cash he had in (country omitted) was transferred to his son in about November 2015, except that he says the wife received the benefit of $2000 which was given to her by his brother when she was in (country omitted) in either 2012 or 2013.
On 16 April 2015 a Provisional Apprehended Domestic Violence Order for the protection of the wife against the husband. The husband agrees that there was an Apprehended Domestic Violence order made ultimately, but that it was only for a period of 6-8 months. The husband says he was removed from the former matrimonial home by the police following this order and not in January 2014 as deposed to by the wife. The husband denies that the parties separated in 2012 as deposed to by the wife but says that they remained living together until April 2015.
The husband says that when the marriage had broken down the wife had taken approximately $3000 worth of gold, being two rings and a bracelet which belonged to the husband together with his passport and “papers”. These items were returned to the husband.
The parties divorced on 26 December 2015.
Current financial situation of the husband
The husband says he currently has a debts of:
a)approximately $6,500 to Telstra;
b)approximately $1,038 to the State Debt Recovery Office; and
c)approximately $1,150 to (omitted).
The husband invested $20,000 into a business which ultimately failed. He lost this amount of money.
Current financial situation of the wife
The wife owns two properties, one in Property B which is tenanted for $400 per week and the Property A property where she resides.
The wife is unemployed.
Health of the parties
The husband was diagnosed with prostate cancer in 2009 and received treatment. The husband’s evidence is that he remains cancer free at present and receives frequent check-ups.
The husband gives evidence that he is currently suffering from the following conditions:
a)Diabetes;
b)Thyroid;
c)High cholesterol; and
d)High Blood pressure.
Future Needs of the parties
The wife remains living in the Property A property and receives a rental income to cover the cost of the loan over the Property B property.
The husband is living in public housing in (omitted).
The husband is currently on the disability pension which he has received since his operation for prostate cancer.
Does the Husband have a Reasonable Prospects of Success?
The husband has filed 3 affidavits in these proceedings. His evidence at its highest establishes that the parties cohabited for approximately 9 years and that during 9 years of cohabitation the husband:
a)lived in the property owned by the wife rent-free;
b)paid half of all household expenses;
c)gave to the wife $50-$200 from time to time;
d)gave to the wife $2000 in 2012 or 2013;
e)paid for two overseas trips to the (country omitted);
f)contributed to the upkeep of the household;
g)painted doors and windows and built and paid for 3 pergolas;
h)did general handyman work around the home; and
i)provided love and support to the wife.
The wife on the other hand:
a)brought into the relationship two properties, one of which was unencumbered and the other while encumbered was earning an income;
b)paid for all household expenses which the husband did not pay for;
c)attended to most of the household duties;
d)cared for the husband during his years of illness; and
e)provided love and support to the husband.
Despite the husband’s evidence at its highest, the husband has not established that any order for property adjustment would be just and equitable. This is so for the following reasons:
a)The wife had significant assets at the commencement of the relationship;
b)Any property which the husband owned at the commencement or during the relationship was either gifted to his son or otherwise dispensed with without any benefit to the wife, but for an amount of $2000;
c)the parties presently do not stand possessed of any jointly owned property;
d)during the course of their relationship, there was no significant contribution of capital or income by the husband for the purpose of the acquisition, conservation or improvement of any of the assets held in the wife’s name;
e)the parties shared their living costs, although perhaps not equally at all times;
f)the parties never maintained any joint bank account;
g)the husband made extensive use of the wife’s property through the provision to him of rent free accommodation, and in return he met some of the expenses associated with his occupation of that property, including general maintenance;
h)Whilst the husband assisted with renovations to the wife’s property, he does not present any probative evidence that any of the work he did there increased the property’s value. He does not contend that the contributions he made gave rise to any identifiable equitable interest in that property.
Whether it is just and equitable to make an order adjusting interests, as the High Court has said, is not to be answered by assuming that the parties’ rights or interests should be different from those that currently exist. The applicant needs to establish this is so. Nothing submitted on behalf of the husband or the evidence to which the Court was taken, establishes a reasonable prospect of success. Indeed, it establishes that the husband has no reasonable prospect of success.
Even if the conclusion about justice and equity is wrong, an assessment of the matters requiring attention under 79(4) would lead the Court to the same conclusion regarding prospects. The findings in respect of contributions are set out above.
As such, the Initiating Application must be dismissed.
Costs
The wife seeks costs on an indemnity basis. The Court did not hear any argument as to costs. Therefore, the parties will each have 28 days and 14 days respectively to file any submissions in relation to costs.
Conclusion
In all of the circumstances and for all of the reasons set out above orders are to be made as set out in the forefront of these reasons.
I certify that the preceding fifty-one (51) paragraphs are a true copy of the reasons for judgment of Judge Obradovic
Date: 8 November 2017
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