Sobolev & Barran

[2021] FCCA 854

FEDERAL CIRCUIT COURT OF AUSTRALIA

Sobolev & Barran [2021] FCCA 854

File number(s):

PAC 3935 of 2019

Judgment of:

JUDGE MYERS

Date of judgment:

30 March 2021

Catchwords:

FAMILY LAW – threshold hearing whether de-facto relationship exists – application for summary dismissal

Legislation:

Family Law Act 1975 (Cth) ss 4AA, 79, 90SM

Federal Circuit Court Rules 2001 r 13.10

Number of paragraphs:

9

Date of hearing:

30 March 2021

Place:

Parramatta

Counsel for the Applicant:

Mr Othen of Counsel

Solicitor for the Applicant:

Thornton Storgato Law Pty Ltd

For the Respondent:

The Respondent appeared in person

ORDERS

PAC 3935 of 2019
BETWEEN:	MS SOBOLEV Applicant
AND:	MR BARRAN Respondent

ORDER MADE BY:	JUDGE MYERS
DATE OF ORDER:	30 MARCH 2021

THE COURT ORDERS THAT:

1.Within 14 days of today’s date, the Applicant and Respondent may request documents or disclosure of information by way of letter and the party receiving the request shall respond to the said request within further 14 days thereafter. For the purposes of the request contained in this order, the request must only relate to documents that go to the issue as to whether a de facto relationship existed between the parties in accordance with the definition contained in section 4AA of the Family Law Act 1975.

2.The Court receives into evidence the Respondent’s tender bundle of 159 pages plus two pages being the index and forms Exhibit “G” in the proceedings.

3.Within 21 days the Applicant is to file and serve a further Amended Initiating Application properly setting out her claims in relation to section 90SM of the Family Law Act 1975 and particularising the final relief that is sought as against the Respondent, including monetary relief.

4.The Respondent is to file and serve any Amended Response he seeks to rely upon 28 days after filing of the Amended Initiating Application.

5.The Application for Summary Dismissal is dismissed.

6.The Applicant is to respond to the Respondent’s Notice to Produce dated 22 March 2021 within 14 days.

7.The matter is adjourned for Directions Hearing on 18 May 2021 at 2:00 pm via AAPT phone link-up.

8.The matter is listed for the resumption of Threshold hearing (part heard) on 8 June 2021 at 10:00 am allocating two days. The parties shall attend the Court in person.

THE COURT NOTES THAT:

A.The parties can take part in the Court telephone link on 18 May 2021 at 2:00 pm by:

a.Dialling the free call number [phone]

b.When prompted dial in the meeting room number 670 845 3538#.

c.Waiting on the line until the court dials in as “the moderator”.

d.Please ensure you have dialled in several minutes prior to the listing time.

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

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

EXTEMPORE REASONS FOR JUDGMENT

JUDGE MYERS:

1. This is a matter that comes before the Court today in circumstances where it was due to resume for its sixth day of hearing. The argument between the parties is whether a de facto relationship does or does not exist on a threshold hearing as between the parties, having regard to the definition found at section 4AA of the Family Law Act 1975. The Respondent has been represented by a solicitor and counsel throughout the proceedings but comes before the Court today self-represented and asks the Court today to review the Initiating Application and then Amended Initiating Application and points out to the Court that the final relief that is sought is particularised as being an application pursuant to section 79 of the Family Law Act 1975 as opposed to what should be section 90SM of the Family Law Act 1975.

2. The Court accepts that these are proceedings for a de facto property claim, and as is such, the listing of the relief sought under section 79 is, of course, and the Court accepts, a typographical error and mistake as opposed to fundamentally something about the Applicant’s case. It is procedurally fair to afford the Applicant the entitlement to amend the Initiating Application to correct what is really a typographical error, amending it from section 79 to section 90SM of the Family Law Act 1975. 

3. There has been some argument made during the course of the proceedings, and again today, that the Applicant has not sought to particularise the claim that she has made but rather, has asked that she be granted leave to particularise the claim that the Applicant makes at a later date.  The Respondent has provided an Affidavit that draws the Court’s attention to various comments made during the course of the proceedings that include that the Applicant suggests that she was in a relationship for an extended period of time and held a position where she had some financial management during the course of her relationship of what might be described as a business. 

4. In those circumstances, it would be hard to accept that, based upon the Applicant’s evidence, she is not aware of the Respondent’s position, and in that regard, it is the Court’s view that the Applicant should particularise, at least for the time being, the claim that she makes and then, perhaps, be granted leave to further amend after disclosure is made, if indeed, the Court the finds that there is a de facto relationship.  The Respondent asks that the Court summarily dismiss the proceedings on the basis that there are no prospects, really, for success, or otherwise, the application is frivolous, vexatious or an abuse of process.

5. The Court drew the Respondent’s attention to Rule 13.10 of the Federal Circuit Court Rules 2001.  It provides for disposal by summary dismissal. 

   Disposal by summary dismissal

   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.

6. The Court finds that it is appropriate that leave be granted to the Applicant to further amend their Initiating Application.

7. The Court finds having taken the Applicant’s evidence at its highest, which the Court is required to do when considering an application for summary dismissal that the proceedings for relief are not frivolous or vexatious.

8. The Court further finds that the claim for relief is not an abuse of process.

9. The Court finds that having taken the Applicant’s evidence at its highest, that the Applicant has some reasonable prospects of success for prosecuting the proceedings or claim. In that regard the Application for Summary Dismissal is dismissed.

I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Myers.

Associate:

Dated:       5 May 2021