Waldon and Kipley-Waldon (No. 2)

In *Waldon & Kipley-Waldon (No. 2)*, the Family Court of Australia considered an application by the respondent wife for the summary dismissal of substantive proceedings commenced by the applicant husband. The husband sought to set aside consent property orders made on 5 January 2012, and subsequently sought property division orders under s 79 of the *Family Law Act 1975* (Cth). The wife contended that the husband's application had no reasonable likelihood of success and constituted a frivolous or vexatious proceeding.

The primary legal issue before the Court was whether the husband's application to set aside the consent orders, pursuant to s 79A(1)(a) of the *Family Law Act 1975*, should be summarily dismissed. This involved determining if there was a miscarriage of justice by reason of fraud, duress, suppression of evidence, or any other circumstance, as alleged by the husband. The husband's claims of duress related to an alleged assurance by the wife to return to the marriage and the pressure to settle a civil action. He also alleged duress in signing a deed to repay funds to the wife and claimed the wife suppressed details of her superannuation entitlements.

Benjamin J applied the principles of summary dismissal, requiring the wife to demonstrate that the husband's case had no reasonable prospect of success. The Court found that the husband's assertions of duress and suppression of evidence were not sufficiently particularised or supported by evidence to establish a miscarriage of justice under s 79A(1)(a). The husband's claims regarding the wife's promise to return to the marriage and the settlement of civil proceedings were found to be speculative and not directly linked to the consent orders. Furthermore, the husband's allegations of duress in signing the consent orders and deed, and the suppression of superannuation information, were not substantiated to the standard required for setting aside such orders.

Consequently, the Court ordered the dismissal of the husband's substantive proceedings. The judgment also set out a process for parties to apply to discharge, vacate, or vary any existing interim or interlocutory orders within twenty-eight days, with specific timelines for responses and listing for hearing. All other extant applications, except for costs, were dismissed, and provisions were made for the return of subpoenaed documents and exhibits.