Tallant and Tallant - [2013] FamCA 403

FAMILY COURT OF AUSTRALIA

TALLANT & TALLANT

[2013] FamCA 403

FAMILY LAW – PROPERTY – Application for summary dismissal – Where wife sought an order that the husband’s Initiating Application be summarily dismissed – Where the husband also SOUGHT an order for summary dismissal of the wife’s Application in a Case – Consideration of the relevant law dealing with summary dismissal – Where the court could not be satisfied that the contentions of either party are manifestly groundless or so obviously untenable that they could not succeed – Where each of the applications for summary dismissal is refused.

Family Law Act 1975 (Cth) ss 79; 79A

Costello & Anor & Condi & Anor [2012] FamCA 355
Crapp & Crapp No.2 (1979) FLC 90-615
Duff & Duff (1977) FLC 90-217
General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69
Friar & Friar [2011] FamCAFC 71
Jones v Skinner (1836) 5 LJ CH 87
Marchant & Marchant [2012] FamCAFC 181
Mullane & Mullane (1983) 158 CLR 436
Perrett & Perrett (1980) FLC 92-101
W & W (1980) FLC 90-872

APPLICANT:

Ms Tallant

RESPONDENT:

Mr Tallant

FILE NUMBER:

PAC

2136

2009

DATE DELIVERED:

2 May 2013

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Aldridge J

HEARING DATE:

11 March 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT:	Ms Bridger
SOLICITOR FOR THE APPLICANT:	Jo-anna Moy, solicitor

COUNSEL FOR THE RESPONDENT:	Mr Stenhouse
SOLICITOR FOR THE RESPONDENT:	Collins & Thompson

Orders

That Order 1 of the response to an Application in a Case filed by the husband on 6 June 2012 be dismissed.
That the response to the Initiating Application filed by the wife on 29 August 2012 be dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Tallant & Tallant has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT

FILE NUMBER:

Ms Tallant

Applicant

And

Mr Tallant

Respondent

REASONS FOR JUDGMENT

Introduction

In these proceedings Ms Tallant (“the wife”) seeks an order that the Initiating Application filed on 27 July 2012 by Mr Tallant (“the husband) be summarily dismissed pursuant to Rule 10.12 of the Family Court Rules. The husband seeks an order, pursuant to the same rule, that the wife’s Application in a Case filed 15 February 2012 also be summarily dismissed.
Both applications have at their heart an order made by consent by the Local Court on 11 December 2003. Order 2 of those orders provided:
The wife shall do things necessary to arrange finance with Westpac Bank in such amounts as she may deem appropriate provided however that a component of that loan should be a Premium Option Home Loan in the amount of two hundred and twenty thousand dollars ($220,000.00) at the bank’s variable housing rate. That the Husband pay all Mortgage payments in respect of the Premium Option Home Loan until the said Premium Option Home Loan is discharged.
The husband ceased paying the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Tallant and Tallant

Details

AGLC: Tallant and Tallant [2013] FamCA 403
Case: [2013] FamCA 403
Decision Date

CaseChat Overview and Summary

In the Family Court of Australia, Ms Tallant (the wife) sought the summary dismissal of Mr Tallant’s (the husband) Initiating Application, while the husband sought the summary dismissal of the wife’s Application in a Case. Both applications were made pursuant to Rule 10.12 of the Family Court Rules, which allows for summary dismissal where a court is found to have no jurisdiction or where there is no reasonable likelihood of success. The core of the dispute concerned two consent orders made by the Local Court in 2003, which were variations of earlier orders made in 1997.

The legal issues before the court were whether the husband’s contention that certain provisions of the 2003 Local Court orders were *ultra vires* and void, and therefore unenforceable, had sufficient merit to warrant summary dismissal of the wife’s enforcement proceedings. Conversely, the court had to consider whether the wife’s assertion that the husband’s application seeking a declaration of invalidity or orders under section 79A of the *Family Law Act 1975* (Cth) was so untenable that it should be summarily dismissed. The parties agreed that the relevant 2003 orders were made pursuant to section 79 of the Act, and not as spousal maintenance orders.

The court applied the principles governing summary dismissal, emphasising that such jurisdiction is to be exercised sparingly and only in clear cases where the contentions are "manifestly groundless" or "so obviously untenable that they could not succeed." The husband argued that specific clauses of the 2003 orders, which mandated mortgage payments and life insurance arrangements related to a loan, constituted an impermissible division or attachment of future income rather than an alteration of property interests under section 79. He contended these provisions were prospective and contingent, thus not falling within the definition of "property" under the Act. The wife argued that these orders were legitimate alterations of property interests.

Ultimately, the court found that it could not be satisfied that the contentions of either party were manifestly groundless or so obviously untenable that they could not succeed. Therefore, both applications for summary dismissal were refused, allowing the substantive proceedings to continue.

Orders