Ward and Ward

[2017] FCCA 513

FEDERAL CIRCUIT COURT OF AUSTRALIA

WARD & WARD [2017] FCCA 513

Catchwords:
FAMILY LAW – Application for leave to proceed with application seeking to ‘revisit’ property orders made by consent in 2003 – applicant declared vexatious litigant in Magistrates Court – summary dismissal.

Legislation:

Family Law Act 1975, ss.102Q, 102QB, 79A(1)(a), 75(2)

Federal Circuit Court of Australia Act 1999, s.17A

Cases cited:
In the marriage of Kohl (1981) 7 Fam LR 591
In the marriage of Bonser (1985) 12 Fam LR 299
Lindon & Commonwealth (No.2) (1996) HCA 14

Applicant: MS WARD

Respondent: MR WARD

File Number: MLC 12226 of 2016

Judgment of: Judge Harland

Hearing date: 7 March 2017

Date of Last Submission: 7 March 2017

Delivered at: Melbourne

Delivered on: 7 March 2017

REPRESENTATION

The Applicant: No appearance

The Respondent: In Person

ORDERS

1. The Application filed 14 December 2016 be dismissed.

2. All outstanding Applications are dismissed and the proceedings are removed from the Active Pending Cases List.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 12226 of 2016

MS WARD

Applicant

And

MR WARD

Respondent

REASONS FOR JUDGMENT

1. These reasons for judgment were delivered orally.  They have been corrected from the transcript.  Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

2. This is an application by the wife for leave to be permitted to commence proceedings against the husband.  The wife was declared a vexatious litigant in 2009 in the Magistrates Court of Victoria and Exhibit A tendered by the husband is the reasons for that decision dated 23 February 2009, which sets out the numerous proceedings the wife has taken out against the husband, many of which were various proceedings in the Magistrates Court but that are not the only proceedings that have been on foot between the parties.

3. The wife prepared the application herself despite seeking leave which, in an application such as this, would have meant not serving the husband.  She has served the husband and he has attended today.  The wife attended this morning.  The matter was stood down to give her an opportunity to talk to the duty lawyer after I indicated a series of problems with her application.  My staff have made inquiries.  She has not been seen in the vicinity of the duty lawyer and it is now past 12.30 and she is nowhere to be found.

4. In my view, the application has no reasonable prospects of success, quite apart from the separate issue about the wife being declared a vexatious litigant, and I have some doubt about whether or not that applies in this Court given that that was based under old state legislation before the introduction of reforms to vexatious litigation and, in this regard, I refer to section 102Q of the Family Law Act 1975 (Cth) (“Family Law Act”). What I propose to do is to deal with this matter on the basis of the power I have pursuant to section 17A of the Federal Circuit Court of Australia Act 1999 (Cth) (“Federal Circuit Court Act”) to summarily dismiss the proceedings.

5. It is necessary to set out briefly some history of this matter to give it context.  The parties had proceedings in the Family Court with respect to their four children and their property interests.  There were final consent minutes with respect to the parenting issues made on 1 November 2002.  Final property orders were made by consent on 25 February 2003 and it is apparent from my inspection of the Court file that the matter was well advanced.  The matter had been prepared for trial.  Both parties were legally represented and had been throughout those proceedings when those orders were made.

6. The wife, in her current application which was filed on 14 December 2016, seeks to revisit the financial orders.  She claims that the husband failed to provide full and frank financial disclosure with respect to the estate of the late Ms H, who was the husband’s stepmother, and with respect of which he was the executor of her estate.  She claims that, if he had made full and frank financial disclosure, she would have been entitled to a greater settlement and, in that regard, she annexes extracts of the husband’s financial statement and a copy of a decision in the Supreme Court in 2005 which was with respect to the administration of the estate where some of the beneficiaries took action against the husband with respect to there being delays in the distribution of the estate and seeking his replacement as an executor.  That application was dismissed.

7. It is apparent that what the wife would be seeking to agitate is an application under section 79A(1)(a) on the basis of seeking to set aside the property orders on the grounds of suppression of evidence by the husband. That is a discretionary provision where the Court may decide to set aside the orders if it is satisfied that it is appropriate to do so. Suppression of evidence involves the wilful concealment of evidence that a party is under a duty to disclose and, in this regard, I refer to the In the marriage of Kohl (1981) 7 Fam LR 591 and the duty of disclosure includes the declaration of expectations and I refer to the case of In the marriage of Bonser (1985) 12 Fam LR 299 and, in that case, the husband had declared that his interest in a block of land had no value but, shortly after orders were made, sold the land for $75,000.

8. What is apparent from an inspection of the Court file is that there has been no suppression of evidence by the husband.  The wife’s complaint is that the husband has received a greater sum pursuant to his entitlements as one of the beneficiaries of the estate than he disclosed in the property proceedings before the Family Court and, in that regard, she annexes part of the financial statement that the husband swore on 7 June 2002.

9. She makes no reference to is the comprehensive affidavit by Peter Davis filed on 24 February 2003.  Shortly before the final property orders were made by consent, Mr Davis was partner of the law firm who was acting for the husband with respect to the deceased estate.  That affidavit provides details of the probate, estimates as to what was in the estate, an inventory of assets and liabilities, and also annexed valuations of real property and other assets.  It is quite clear from that affidavit that the estate was still undergoing its processes and so, of course, at that stage, the exact amount that the husband was to receive was uncertain.

10. It cannot be said that the wife was not aware in general terms of the fact that the husband had a substantial interest in the estate, which I note came into being after separation, so would have been relevant in terms of section 75(2) adjustments but not, on the face of it, contributions as far as I can see from my perusal of the file. On that basis, the ground that the wife would be seeking to rely on to agitate the property proceedings being re-agitated, on its face, cannot be made out.

11. The other factor is that she gives no explanation whatsoever as to why she has waited until now to bring this application. She annexes a document to her affidavit that is from 2005. It is 2017 and these orders were made some 14 years ago. It is also relevant to note – and I have given leave to the husband to file an affidavit this morning and also to tender the decisions of the Magistrate Popovic where she declared the wife a vexatious litigant and also the sentencing reasons when the wife was given a suspended prison sentence for stalking the husband in 2006 – that I am comfortably satisfied that this is a matter that should be summarily dismissed pursuant to s17A of the Federal Circuit Court Act as it is an application that has no reasonable prospect of success.

12. I am mindful of the comments that Kirby J makes in paragraph 14 of Lindon & Commonwealth (No.2) (1996) HCA 14 and that it is a serious matter to deprive a person of access to the courts of law but, in this case, it is quite clear that the wife has commenced numerous proceedings against the husband resulting in her being declared a vexatious litigant and, whilst I have some doubts that that applies in this Court, it is not necessary for me to determine that, nor can I because she has left the courtroom, so I cannot comply with the provisions in section 102QB that requires the wife the opportunity to be heard before I declare her a vexatious litigant but, in circumstances, it is appropriate that I summarily dismiss the application today and I will do so and remove the matter from the pending cases list.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Judge Harland

Date:  20 March 2017